UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


FORMS  OF  PLEADINGS 


PRECEDENTS 


COURT  OF  CHANCERY 


STATE  OF  NEW  JERSEY, 


Revised  Rules  of  the  Court  of  Chancery,  Rules  of  the  Prerogative 

and  Orphans'  Courts,  and  the  Revised  Rules  of  the 

Court  of  Errors  and  Appeals. 


ALSO, 


PRACTICAL  NOTES  AND  REFERENCES   TO  DECISIONS   ON  MAT- 
TERS  OF  PLEADING  AND  PR  A  CTICE. 


REVISED  AND  ENLARGED  EDITION. 


S.   MEREDITH   ^ICKINSON, 

COUNSELLOR-AT-LAW. 

7  lIRRARf 
WM.  H.  PA^' 

TRENTON,  N.  J. : 

THE  JOHN   L.  MOKPHY  PUIiLISHING  COMPANY. 
1894. 


Entered  according  to  Act  of  Congress,  in  the  year  1894, 

By  S.  MEREDITH  DICKINSON, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


INTRODUCTION  TO   FIRST   EDITION, 


Tkenton,  N.  J.,  April  18th,  1879. 
Hon.  Theodore  Runyon: 

Bear  Sir — More  than  a  year  ago  I  undertook,  at  your  suggestion,  the 
preparation  of  the  following  pages,  and  proceeded  with  the  work  as  rapidly 
as  my  other  duties  and  engagements  permitted. 

At  my  request,  and  notwithstanding  your  many  pressing  and  arduous  official 
duties,  you  have  found  time  to  examine  the  sheets  as  they  passed  through  the 
press,  and  now^,  with  your  valuable  aid  and  suggestions,  I  am  enabled  to 
present  the  completed  work  for  your  final  examination  and  approval. 

The  book  of  "Chancery  Precedents,"  originally  prejiared,  in  1841,  by  the 
late  Stacy  G.  Potts,  Esq.,  (an  enlarged  edition  of  which  was  issued  in  1872,  by 
Messrs.  Potts  &  Linn,)  is  the  only  work  specially  adapted  to  the  New  Jersey 
Chancery  Practice  ever  hitherto  attempted,  and  it  has  been,  so  far  as  it 
extended,  of  real  practical  utility.  The  object  of  that  work,  as  stated  by 
Mr.  Potts,  in  his  introductory  note  thereto,  "  to  aid  in  producing  uniformity 
in  the  details  of  the  practice  and  in  affording  a  useful  manual  to  the  younger 
members  of  the  bar,"  has  been  in  a  great  measure  attained.  Since  1841,  how- 
ever, the  great  bulk  of  our  chancery  reports  has  been  published,  and  many 
changes  have  been  made  in  the  practice  of  the  court,  as  the  great  number 
of  decisions  on  points  of  practice  testify,  and  by  important  alterations  in  our 
statute  law,  many  of  the  forms  contained  in  that  volume  have  become  obso- 
lete, so  that  in  the  hands  of  "  the  younger  members  of  the  bar,"  especially,  it 
has  become  a  blind  guide. 

While  carrying  out  in  the  main  the  objects  of  the  work  of  Mr.  Potts,  I  have 
attempted  to  make  these  pages  of  greater  utility  by  inserting  a  more  varied 
collection  of  forms  of  pleadings,  and  by  introducing,  under  each  form,  such 
short  and  ai)t  notes  on  points  of  practice,  and  such  portions  of  the  statutes 
relating  to  the  subject-matter  of  those  forms,  as  will  be  useful  to  the  practi- 
tioner in  framing  pleadings. 


IV  INTRODUCTION   TO   FIRST   EDITION. 

Some  embarrassment  has  been  felt  in  exercising  a  discretion  as  to  the  notes 
to  be  introduced,  so  as  to  confine  the  work  within  a  moderate  compass  ;  an  em- 
barrassment which,  probably,  will  be  appreciated  when  it  is  remembered  what 
a  wealth  of  resources  is  now  at  command  in  the  many  excellent  published  works 
on  the  subjects  of  pleading  and  practice.  I  determined,  however,  to  limit  myself 
generally  to  a  few  well-recognized  soui'ces  of  learning  on  those  special  subjects 
and  for  illustration  of  the  forms  have  endeavored  to  draw  solely  from  the 
highest  and  best  authorities  on  the  science  of  equity  pleading  and  practice ; 
namely,  from  the  decisions  of  the  earlier  English  Chancellors,  whose  pride  it 
was  to  lay  strong  and  deep  the  solid  foundations  of  that  system  of  pleading 
and  practice  which  is  now  in  use  in  our  own  state;  from  the  earlier  Irish 
reports,  to  which  the  student  can  refer  with  confidence,  and  from  the  admir- 
able treatise  of  Daniell,  which  is  the  unfailing  resource  of  every  practitioner; 
in  our  own  country,  from  the  decisions  of  Chancellors  Kent  and  Walworth, 
and  the  treatise  of  Hoffman,  which  contain  all  that  is  valuable  in  the  English 
system,  and  many  improvements  which  have  adapted  that  system  more  nearly 
to  our  wants;  from  the  decisions  of  the  Supreme  Court  of  the  United  States, 
and  finally  and  chiefly,  from  the  published  opinions  of  our  own  Court  of 
Chancery. 

The  style  of  the  book,  by  which  is  meant  the  arrangement  of  the  notes  under 
the  forms  to  which  they  relate,  has  not  been  adopted  hitherto,  so  far  as  I 
know,  in  any  work  of  a  similar  character,  except  in  that  of  Mr.  Tripp, 
which  came  into  my  hands  after  the  plan  of  this  volume  had  been  perfected. 
I  am  confident  such  arrangement  will  be  found  very  convenient,  bringing,  as 
it  does,  the  pleading  and  the  practice  under  the  eye  at  one  glance. 

To  render  the  index  as  useful  as  possible,  references  are  made  not  only  to 
the  general  titles,  but  to  the  particular  subjects  of  the  pleadings,  so  that  each 
form  required  can  be  found  without  difficulty.  The  index  also  contains 
references  to  the  subject-matter  of  the  notes. 

The  precedents  and  forms  are  preceded  by  the  rules  of  the  Court  of  Chan- 
cery, as  revised  under  your  direction ;  by  the  rules  of  the  Prerogative  and 
Orphans'  Courts;  and  by  the  rules  of  the  Court  of  Errors  and  Appeals,  as 
lately  revised  by  that  tribunal. 

I  have  thus  stated,  more  fully  perhaps  than  was  necessary,  the  object  and 
plan  of  the  work,  that  I  may  have  your  judgment  upon  the  manner  in 
which  I  have  discharged  the  responsible  duty  devolved  upon  me  in  its  prepa- 
ration. 

My  aim  has  been  to  present  to  the  profession  a  practical  and  useful  book — 
one  adapted  to  the  exigencies  of  actual  work ;  but,  doubtless,  there  are  errors 


INTRODUCTION   TO    FIRST   EDITION.  V 

which  have  escaped  correction,  and  in  order  tliat  these  may  be  avoided  in  a 
futnre  edition,  should  one  ever  be  required,  any  suggestions  from  those  who 
may  have  occasion  to  consult  this  work  will  be  thankfully  received. 
I  am,  with  sentiments  of  great  respect, 

Your  obedient  servant, 

S.  M.  DICKINSON. 


Newakk,  N.  J.,  May  1st,  1879. 
S.  Meredith  Dickinson,  Esq.: 

Dear  Sir — My  examination  (by  no  means  cursory)  of  the  sheets  of  your 
book,  as  they  passed  through  the  press,  has  satisfied  me  that  you  have  done 
your  work  well  and  thoroughly.  The  legal  profession  of  the  state  is  under 
obligation  to  you  for  the  production  of  a  book  of  great  practical  utility  as  well 
to  the  senior  as  to  the  junior  members  of  the  bar.  Tlie  work  will  be  found 
to  have  been  carefully  and  judiciously  prepared,  and  will  prove  a  safe  and 
valuable  guide  in  our  equity  practice. 

Yours  very  truly, 

THEODORE  EUNYON. 


INTRODUCTION  TO  REVISED  EDITION. 


The  original  work,  which  was  so  highly  commended  by  Chancellor  Runyon, 
whose  letter  is  now  reprinted,  is,  after  the  lajise  of  fifteen  years,  out  of  print, 
and  it  is  gratifying  to  learn  from  those  who  have  used  the  book  and  are  com- 
petent to  speak  of  it,  that  it  is  thought  to  be  deserving  of  praise  for  the  accu- 
racy of  its  forms  and  for  its  general  utility  to  the  profession  of  the  state. 

A  new  edition  seems  to  be  demanded,  and,  while  preserving  the  general 
arrangement  of  the  first  edition,  the  book  has  been  entirely  revised  in  some 
parts,  and  all  the  modifications  in  the  forms,  rendered  necessary  by  the  changes 
in  the  statutory  lavv  and  the  standing  rules  of  the  court,  have  been  made ;  the 
decisions  in  matters  of  pleading  and  practice,  to  the  present  date,  have  been 
inserted,  and  additional  forms  of  bills  and  other  pleadings  added,  so  as  to 
present  a  reliable  compendium  of  the  present  chancery  practice. 

It  is  not  possible  to  furnish  a  form  for  every  conceivable  case  that  may 
arise,  but  it  is  believed  that  the  practitioner  will  find  in  some  part  of  the  work 
whatever  he  needs  to  lighten  his  labors  in  the  matter  of  pleading.  The  forms 
are,  in  most  cases,  actual  precedents  from  the  files,  and  may  be  used  with  con- 
fidence as  indicating  the  ruling  of  the  court  in  the  particulars  to  which  they 
relate. 

After  considerable  labor  and  research,  the  date  of  the  promulgation  and 
amendment  of  each  rule  has  been  ascertained,  and  where  the  same  has  been 
amended,  the  date  of  the  amendment  is  given  and  the  amendment  is  included 
in  [brackets]  for  easy  reference.  It  not  infrequently  happens  that  the  history 
of  a  rule  is  of  some  importance. 

The  index  to  the  first  edition  has  been  the  subject  of  considerable  criticism, 
by  reason  of  the  fact  that  too  frequent  reference  was  made  to  the  subject- 
matter  of  the  forms  and  notes  without  indicating  the  page  in  the  work  Avhere 
the  matter  was  to  be  found.  This  defect  has  been  remedied,  and  it  is  hoped 
that  the  index,  which  has  been  prepared  by  John  Eidley,  Esq.,  a  member  of 
the  bar  of  the  county  of  Union,  who  has  kindly  given  his  assistance  in  this 
laborious  work,  will  fully  answer  its  purposes. 

To  the  profession  in  other  parts  of  the  country,  the  publication  of  a  work 
of  this  character  may  seem  a  superfluous  labor,  but,  under  whatever  name  it 
may  be  known,  "  equity "  must  continue  to  be  administered  upon  the  prin- 


INTKODUCTION   TO   REVISED   EDITION,  VII 

ciples  established  by  its  earlier  interpreters.  In  the  language  of  Blackstone, 
"the  system  of  our  ^courts  of  equity  is  a  labored,  connected  system,  governed 
by  established  rules,  and  bound  down  by  precedents  from  which  they  do  not 
depart,"  and  the  forms  will  be  found  to  vary  little  in  whatever  court  the 
decrees  may  be  granted,  and,  therefore,  an  apology  is  unnecessary  for  a  work 
of  the  cliaracter  of  the  one  now  offered  to  the  Bar.  Though  a  separate  and 
distinct  Court  of  Chancery  is  nowhere  maintained  now,  except  in  a  very  few 
states,  it  is  not  likely  to  fail  in  popularity  in  New  Jereey  so  long  as  it  shall 
continue  to  command  the  respect  and  confidence  it  now  enjoys. 

It  was  said  in  Judge  Field's  "  Provincial  Courts  of  New  Jersey  "  that  the 
Court  of  Chancery,  for  some  reason  or  other,  seemed  never  to  have  been  a 
popular  favorite  in  this  country.  If  this  be  really  true,  I  incline  to  think 
that  the  reason  has  been  that  the  court  was  so  far  removed  from  the  people. 

In  the  times  of  which  Judge  Field  wrote,  so  far  as  New  Jersey  was  con- 
cerned, the  Governor  also  exercised  the  office  of  Chancellor  ex  officio.  He  was 
appointed  by  the  Crown,  and  governed  largely  by  the  advice  of  a  privy 
council  selected  from  among  the  members  of  the  legislative  branch  of  the 
government.  The  formalities  consequent  upon  the  maintenance  of  the  dignity 
of  his  offices,  and  the  very  nature  of  the  office  as  it  then  existed,  tended 
to  exclusiveness.  Afterwards,  under  the  constitution  of  1776,  the  Governor 
continued  to  be  Chancellor  ex  officio,  but  was  elected  by  the  legislature  in 
joint  meeting. 

On  the  other  hand,  the  separation  of  the  judicial  from  the  executive  func- 
tions, effected  by  the  constitution  of  1844,  and  the  appointment  of  frequent 
motion-days,  enabling  suitors  to  come  promptly  before  the  court  at  convenient 
places,  (the  Chancellor  being  at  all  times  readily  accessible  without  undue 
formality,)  have  made  the  court  of  great  benefit  to  the  people  generally  who 
before  knew  little  of  its  workings.  Then,  too,  the  conduct  of  the  clerk's  office 
and  the  fact  that  it  can  be  resorted  to  at  all  times  for  information^  both  in 
person  and  by  letter,  by  any  one  interested  in  the  records,  has  familiarized  the 
people  witb  the  system  and  established  in  their  minds  a  confidence  in  its 
administration  that  a  court  of  equity,  especially,  should  possess. 

Lastly,  the  innovation  in  New  Jersey,  dating  from  1871,  of  oral  trials  before 
Vice  Chancellors,  at  convenient  chambers,  in  the  centres  of  population,  con- 
ducted almost  daily,  bringing  suitors  and  witnesses  face  to  face  with  the  judge, 
has  done  much  to  remove  prejudice  and  bring  home  to  the  people  a  knowledge 
of  the  advantages  and  virtues  of  a  separate  ec^uity  tribunal. 

S.  M.  DICKINSON. 
Trenton,  N.  J.,  April,  1894. 


TABLE  OF  CONTENTS. 


INTRODUCTIONS, 

TABLE  OF  CONTENTS, 

INDEX  TO   CASES  CITED, 

TABLE  OF  CORRIGENDA  ET  ADDENDA, 

RULES  OF  THE  COURT    OF  CHANCERY, 

INDEX  TO  CHANCERY  RULES, 

RULES  OF  THE  COURT  OF  ERRORS  AND    APPEALS, 

RULES  OF  THE  PREROGATIVE  COURT, 

RULES  OF  THE   ORPHANS'   COURTS, 

FORMS    OF    PLEADINGS: 


bill   of   complaint. 

The  Address, 

The  Introduction,    . 

The  Premises  or  Stating  Part, 

The  Charge  of  Confederacy, 

The  Charging  Part, 

The  Jurisdiction  Clause,    . 

Interrogating  Part, 

Prayer  for  General  Relief, 

Prayer  for  Process, 

Method  of  Signing  Bills, 

Method  op  Swearing  to  Bills. 


page. 

iii-vii 

ix-xi 

xiii-xliii 

xliv 

xlvii 

cxv 

cxxvii 

cxxxvii 

cxli 


1 
2 
7 
9 
9 
9 

10 
11 
12 
15 
16 


Op  Process  for  Appearance  and  Answer, 

Form  of  Decree  Pro  Confesso,  .... 

Op  Appearance,         ...... 

Op  Proceedings  to  Compel  an  Answer, 

Of  Proceedings  for  Contempt  in  Violating  an  Injunction, 

Of  the  Appointment  of  a  Guardian  Ad  Litem,    . 

Of  Administration  Ad  Prosequendum,  . 

Proceedings  by  a  Defendant  Before  Pleading: 

Security  for  costs,  ..... 

Proceedings  in  forma  pauperis,  .... 

Of  the  Defence  to  a  Suit: 

Production  of  papers,         ..... 

Orders  to  answer,  ...... 

Commission  to  take  an  answer,      .... 

Demurrer,  .  .  .     ■        . 


18 
34 
35 
36 
45 
49 
57 


72 

74 
80 
86 


TABLE   OF   CONTENTS. 


[S  OF  PLEADINGS: 

Of  the  Defence  to  a  suit: 

page. 

Pleas,          ....... 

96 

Replication  to  plea,      ...... 

100 

Answers,      ....... 

104 

Disclaimer,        ....... 

109 

Affidavit  to  answer,             ..... 

113 

Interrogatories,              ...... 

114 

Proceedings  by  Complainant  Before  Replying  : 

Exceptions  to  answer,         ..... 

191 

Amending  bill,              ...... 

132 

Proceedings  on  the  Part  of  Defendant  Before  Repli- 

cation : 

Payment  of  money  into  conrt,       .... 

137 

Conduct  of  cause  by  defendant,           .... 

139 

Dismissal  of  bill,    ...... 

140 

Replication,          ....... 

143 

Testimony,       ....... 

145 

Hearing,    ........ 

171 

Final  Decree,            ...... 

178 

Rehearing,            ....... 

182 

Appeals,           ....... 

186 

Summons  and  Severance,           ..... 

190 

Execution  of  Decree,         ..... 

202 

Writ  of  assistance,        ...... 

204 

Executions,             ...... 

210 

Sheriff's  or  mastei-'s  deed,         .             .             .             . 

237 

Feigned  issue,        ...... 

243 

Proceedings  to  Compel  a  Purchaser  to  Complete  His 

Purchase,     ...... 

253 

Application  for  Surplus  Money,       .... 

256 

Interlocutory  Applications  and  Other  Proceedings  in 

A  Cause,  ....... 

273 

Motions,      ....... 

273 

Orders,               ....... 

277 

Affidavits,               .            .            . 

278 

Election,            ....... 

279 

Substitution  of  solicitor,     ..... 

281 

Substitution  of  master,              ..... 

282 

Admission  of  parties,          ..... 

283 

Injunction,            ....... 

286 

Ne  Exeat,       ....... 

309 

Abatement  and  Revivor,          ..... 

314 

Scire  Facias,  ....... 

322 

Foreclosure,         ....... 

326 

Redemption  of  Mortgaged  Premises, 

377 

Strict  Foreclosure,       ...... 

386 

TABLE   OF   CONTENTS.  xi 

FOKMS  OF  PLEADINGS:  page. 

402 
.      447 

452 
.      465 

474 
.      446 

480 
.      489 

496 
.      501 

507 


Partition,        ..... 

Dower  and  Curtesy,      .... 

Divorce,  ..... 

Alimony,    ..... 

Nullity  of  Marriage, 

Habeas  Corpus,     ..... 

Interpleader,  .  .  .  . 

Perpetuating  Testimony, 

Bill  for  Discovery  Under  the  Statute, 

Supplemental  Bill,        .... 

Bill  of  Keview,        .... 

Cross-Bill,  .  .  .  .  .  .  .510 

Creditor's  Bill  to  Establish  the  Lien  of  His  Judgment,  512 
Bill  by  an  Attaching  Creditor,  &c.,      .  .  .  521 

Proceedings  Against  Insolvent  Corporations,       .  .      529 

bills  for  relief. 

Bill  for  Relief  Against  a  Judgment  at  Law,           .  558 

Bill  Praying  the  Cancellation  of  a  Mortgage,  .  566 
Bill  to  Compel  Payment  of  Excess  of  Mortgage  Debt 

Above  Net  Proceeds  of  Sale,  .  .  .  576 
Bill  to  Enforce  Personal  Liability  of  Director  of  a 

Corporation,              ......  580 

Bill   by   a    Surety   to   Compel    Payment   of    Debt   by 

Principal,            ......  588 

Bill  by  Next  of  Kin  for  Distribution,  &c.,           .           .  594 

Bill  for  Establishment  of  a  Will,       .            .           .  602 

Bill  to  Set  Aside  a  Fraudulent  Conveyance,      .            .  606 

Bill  to  Quiet  Title,            .            .            .           .           .  615 

Bill  for  Dower,             ......  622 


Special  Decrees  and  Decretal  Orders,  .  .  627 
Proceedings  Kespecting  Lunatics,  Idiots  and  Habitual 

Drunkards,    .......  638 

Proceedings  for  Sale  of  Lands  of  Lunatics,  &c,      .  661 
Sale  of  Infants'  Lands,            .            .            .            .            .669 

Application  for  Sale  of  Lands  Limited  Over,  &c.,  .  682 

Proceedings  for  Removal  of  Property  of  Minor,  .  700 
Application  for  Sale  of  Lands  of  a  Person  Presumed 

to  be  Dead,         ......  703 

Application  for  Payment  or  Delivery  to  Legatee  in 

Remainder  of  Personal  Property  BEciUEATiiED  for 

Life  to  a  Person  Presumed  to  be  Dead,         .            .  713 

Application  for  the  Appointment  of  a  New  Trustee,  720 

INDEX  TO  FORMS  AND  NOTES,         ....  729 


INDEX  TO  CASES  CITED. 


A. 

Ackens  v.  Winston 7  C.  E.  Gr.  444 359 

Ackerson  v.  Lodi  Branch  R.  R.  Co...     1  Stew.  Eq.  542 331 

Adams  V.  Hudson  County  Bank 2  Stock.  535 305 

African  M.  E.  Church  v.  Conover 12  C.  E.  Gr.  157 11 

Aldridge  v.  Messner 6  Ves.  418 486 

Allanson  v.  Moorsom 2  Sim.  &  Stu.  478 123 

Allen  V.  Cole 1  Stock.  286 213,  219 

Allen  V.  Mercantile  Mut.  Ins.  Co 46  Barb.  643 8 

Allen  V.  Morris 5  Vr.  159 333 

Allen  V.  Roll 10  C.  E.  Gr.  163 107,  332 

Allen  V.  Smith 7  Halst.  159 18,  213,  235 

Allen  V.Taylor 2  Gr.  Ch.  435 36,  293.  502 

Alvord  V.  Beach 5  Ab.  451 253 

Ambrose  v.  Ambrose 1  Cox  S,  C.  194 138 

Am.  Dock  &  Imp.  Co.  v.  Trustees 10  Stew.  Eq.  266 244,  245 

American  Ins.  Co.  v.  Ryerson 2  Hal.  Ch.  9 350 

Amos  V.  Amos 3  Gr.  Ch.  171 465,  467,  468 

Anderson  v.  Stather 9  Jur.  1085 113 

Andrews  v.  Ford..... 2  Hal.  Ch.  488 140 

Andrews  v.  Stelle 7  C.  E.  Gr.  478 342 

Annin  v.  Annin 9  C.  E.  Gr.  188 3 

Anonymous 6  Madd.  276 14 

Anonymous 2  Ves.,  Sr.,  63 61 

Anonymous Pen.  886 69 

Anonymous Pen.  *513 79 

Anonymous 1  Yern.  117 115 

Anonymous 4  Sim.  359 138 

Anonymous 1  Yes.,  Jr.,  140 140 

Anonymous 4  Madd.  228 181 

Anonymous 3  Zab.  211 234 

Anonymous 2  P.  Wms.  68 249 

Anonymous 10  Paige  20 343 

Anonymous 9  C.  E.  Gr.  19 474 

Anonymous 1  Yern.  351 486 

Anonymous 1877 Ixxii 

Anshutz  V.  Anshutz 1  C.  E.  Gr.  162 '. 309,  469 

Anthony  V.  Anthony 3  Stock.  70 455 

Apgar  V.  Hiler 4  Zab.  812 588 


XIV                                     INDEX   TO  CASES   CITED. 

Aptliorp  V.  Comstock 2  Paige  485 ,  ...  251 

Apthorpe  V.  Comstock Hopk.  163;  8  Cowen  386 78 

Archbishop  of  York  v.  Stapleton 2  Atk.  137 133 

Arden  v.  Waldon 1  Edw.  Ch.  631.  19 

Armstrong  v.  Ross 5  C.  E.  Gr.  109 336 

Arnaud  V.  Grigg 2  Stew.  Eq.  1 177 

Arnhout,  Inre 1  Paige  498 650 

Arnold  v.  Smith 5  Mason  C.  C.  414 230 

Ashmore  v.  Evans 3  Stock.  153 8 

Atkinson  v.  Manks 1  Cowen  691 485 

Atkyns  v.  Drake 1  McCle.  &  Y,  229 251 

Atkyns  v.  Wright 14  Ves.  211 78 

Att'y-Gen.  V.  Carlisle 2  Sim.  427 81 

Att'y-Gen.  v.  Del.  &  B.  B.  R.  R.  Co...  12  C.  E.  Gr.  5,  633 6,  7 

Att'y-Gen.  v.  Heishon 3  C.  E.  Gr.  413. 245 

Att'y-Gen.  v.  Montgomery 2  Atk.  378 251 

Att'y-Gen.  v.  Scott 1  Ves.  419..... 200 

Att'y-Gen.  v.  Skinner's  Co 1  Coop.  P.  C.  5 71 

Att'y-Gen.  v.  Steward 6  C.  E.  Gr.  340 17 

Att'y-Gen.  V.  Tiler 1  Dick.  378 7 

Att'y-Gen.  v.  Wright 3  Beav.  447 289 


Bailey  v.  Burton...,  8  Wend.  339 11 

Bailey  V.  Gundry 1  Keen  53 70 

Bailey  v.  Stiles 2  Gr.  Ch.  245 13,  105,  136 

Bailey  v.  Stiles 1  Gr.  Ch.  220 603 

Baker  v.  Baker 4  Dutch.  13 359 

Baker  v.  Haily 2  Dick.  632 309 

Baker  V.Holmes Dick.  19 19 

Baker,  In  re 2  Johns.  Ch.  232 638 

Baker  V.  Whiting 1  Story  218 183 

Bancroft  v.  Wardour 2  Bro.  C.  C.  66 136 

Bank  of  Chenango  v.  Cox 11  C.  E.  Gr.  452 294 

Bank  of  Metropolis  v.  Sprague 6  C.  E.  Gr.  458 188 

Bank  of  Orleans  v.  Skinner 9  Paige  305 17 

Bank  of  United  States  v.  Ritchie 8  Pet.  128 363 

Bank,  The,  v.  Dugan 2  Bland  254 527 

Barbon  v.  Searle 1  A^ern.  416 507 

Barker,  In  re 2  Johns.  Ch.  235 56 

Barker  v.  Ray 2  Russ.  63 251 

Barker  v.Wyld 1  Vern.  140 174 

Barnard  v.  Darling 1  Barb.  Ch.  218 113 

Barnes  v.  Gibbs^ 2  Vr.  318 117,  280 

Barnes  v.  Taylor 3  Stew.  Eq.  7 415 

Barrett  v.  Doughty 10  C.  E.  Gr.  379 3,  93,  94,  133 

Barriclo  v.  Trenton  Ins.  Co 2  Beas.  164 502 


INDEX    TO   CASES   CITED.  XV 

Bartlett  v.  Hawker Mad.  Ch.  157 489 

Barton  v.  Beatty 1  Stew.  Eq.  414 203 

Barton  v.  Long 18  Stew.  Eq.  160,  841 Ixv,  629 

Bassett  v.  Johnson 2  Gr.  Ch.  417 245,  246,  250 

Bassett  V.  Johnson 1  Gr.  Ch.  155 247 

Bauere  v.  Bauere 4  Johns.  Ch.  188,  198 473 

Beale  V.  Blake... 18  Stew.  Eq.  668 615 

Beatty  V.  De  Forrest 10  C.  E.  Gr.  643 ;  12  Id.  482.... 203 

Beck  V.Morris  May  T.,  1877 307 

Beckford  v.  Wildman 16  Ves.  438 78 

Beddall  v.  Page 2  Sim.  224 40 

Beeckman  V.  Montgomery 1  McCart.  107 519 

Beekman  V.  Frost 18  Johns.  544 378 

Begbie  v.  Begbie 3  Hal.  Ch.  98 466 

Belford  v.  Crane 1  C.  E.  Gr.  265 240 

Bell  V  Gilmore 10  C.  E.  Gr.  104 _. 223 

Bell  V.  Hall 1  Hal.  Ch.  49 '. 106 

Bell  V.  Woodward 47  N.  H.  539 247 

Bellerjeau  v.  Ely 3  Halst.  273 421 

Belton  V.  Belton....  11  C.  E.  Gr.  449 460,  462 

Bennet  v.  Bonnet 2  Beas.  114 476 

Bennett  V.  Calhoun  Ass'n 9  Kich.  163 343 

Bennett  v.  Hamlin 2  Dick.  Ch.  Eep.  326 

119,121,124,  126 

Bennington  Iron  Co.  v.  Campbell 2  Paige  159 126 

Benson  v.  Bennett 1  Dutch.  166 278 

Benson  v.  Woolverton 1  C.  E.  Gr.  110 179,  315,  317 

Bentley  v.  Long  Dock  Co 1  McCart.  480,  487;  2  Id.  501 

402,  412,  415,  442 

Berckmans  v.  Berckmans 1  C.  E.  Gr.  122 462 

Beresford  v.  Adair 2  Cox  156 176 

Berryman  v.  Graham 6  C.  E.  Gr.  370 342 

Best  V.  Schermier 2  Hal.  Ch.  154 372 

Bigelow  V.  Cassedy 11  C.  E.  Gr.  557 377 

Bigelow  V.  Magee 12  C.  E.  Gr.  392 513 

Binney'sCase 2  Bland  99 113 

Binns  v.  Mount 1  Stew.  Eq.  24 138 

Bird  V.  Davis 1  McCart.  479 104 

Bishop  V.  Bishop 13  Ala.  475 7 

Black  V.  Black 11  C.  E.  Gr.  431 ;  12  Id.  664 xc,  453 

Black  V.  Black 5  Stew.  Eq.  74 Ixxxiv 

Black  V.  Del.  &  Rar.  Canal  Co 9  C.  E.  Gr.  456 136 

Black  V.Ely 1  Halst.  232 234 

Black  V.  Lamb 1  Beas.  108 245,  247 

Black  V  Shreve 3  Hal.  Ch.  440 90,  615 

Blackwell  v.  Kankin 3  Hal.  Ch.  153 521 

Blair  v.  Porter 2  Beas.  267 4S0 


XVI                                     INDEX   TO  CASES   CITED. 

Blair  v.  Thompson 11  Gralt.  411 623 

Blake  v.  Blake 2  Sch.  &  Lef.  26 137 

Blauvelt  v.  Smith 7  C.  E.  Gr.  31 202,  206 

Bleecker  V.  HennLon 8  C.  E.  Gr.  123 420 

Bliss  V.  Boscawen 2  Ves.  &  Bea.  102 134 

Bliss  V.  Slater May  T.,  1872 245 

Bloodgood  V.  Clark 4  Paige  574,  575 498 

Board  of  Dom.  Miss.  v.  Puechelstein..  12  C.  E.  Gr.  30 93 

Bodine  v.  Gray 9  C.  E.  Gr.  335 336 

Body  V.  Kent 1  Mer.  361 278 

Boehm  v.  Wood 1  Turn.  &  R.  332,  240 14,  309,  312 

Bond  V.  Hendricks 1  A.  K.  Marsh.  594 12 

Boon  V.  Pierpont 1  Stew.  Eq.  7  ;  5  Id.  217 Ixix,     12 

Boone  v.  Ridgway's  Ex'rs 12  C.  E.  Gr.  143 297 

Booraem  v.  Wells 4  C.  E.  Gr.  87 174 

Booth  V.  Rich 1  Vern.  295 389 

Boqut  V.  Coburn 27  Barb.  230 378 

Bossard  V.  Lester 2  McCord's  Ch.  *419 140 

Botts  V.  Cozine 2  Edw.  Ch.  583 559 

Bowden  v.  Beauchamp 2  Atk.  82 141 

Bowers  V.  Bowers Jul}',  1829 35,  356 

Bowne  v.  Ritter.. 11  C.  E.  Gr.  456 232,  359 

Boyd  V.  Mills 13  Ves.  85 95 

Bradford  V.  Felder 2  McCord's  Ch.*l 70 133 

Bradshaw  v.  Bradshaw 2  Mer.  492 138 

Brandlyn  v.  Ord 1  Atk.  571 141 

Brantingham  v.  Brantingham 1  Beas.  164 259 

Brasher  V.  Van  Cortlandt 2  Johns.  Ch.  245 12 

Bray  v.  Bray 2  Hal.  Ch.  27 467 

Breeding  V.  Finley 1  Dana  47 71 

Brewer  v.  Turner Str.  233 190 

Brewer  v.  Wilson 2  C.  E.  Gr.  180 231 

Briantv.  Reed 1  McCart.  271 480 

Bright  V.  Currie 5  Sandf.  433 6 

Brinkerhoff  v.  Franklin 6  C.  E.  Gr.  334 24,  334 

Brocker  v.  Martin 3  Yerger  55 117,  280 

Brokaw  v.  Brokaw 14  Stew.  Eq.  215 9 

Brookfield  v.  Williams 1  Gr.  Ch.  341 403,  439,  442 

Brooks  V.  Byam 1  Story  297 120 

Brooks  V.Lewis 2  Beas.  214 14 

Broom  v.  Beers 6  Conn.  198 333 

Brotherton  v.  Chance Bunb.  34 127 

Brewer  v.  Brower 2  Edw.  Ch.  621 548 

Brown  V.  Buckley 1  McCart.294 169 

Brown  et  al.  v.  Easton  et  al 3  Stew.  Eq.  725 Ixxxi 

Brown  V.  Greenly Dick.  504 146 

Brown  V.  Keating 2  Beav.  581 120 


INDEX   TO   CASES   CITED.  XVll 

Brown  V,  Winans 3  Stock.  267 304,  305 

Brownlee  v.  Lockwood 5  C.  E.  Gr.  239 93 

Brownsword  v.  Edwards 2  Yes.  243 90 

Bruen  v.  Crane 1  Gr.  Ch.  347 342 

Brimiagim  v.  Chew 4  C.  E.  Gr.  337 182,  18S 

Brumagim  v.  Chew 6  C.  E.  Gr.  180 198 

Brumley  V.  AVestchester  Society 1  Johns.  Ch.  366 115 

Bruncker,  Ex  parte 3  P.  Wms.  312 14 

Brundage  v.  Goodfellow 4  Hal.  Ch.  513 348,  356 

Brundred  v.  Paterson  Machine  Co....     3  Gr.  Ch.  294,  309 288 

Brundred  v.  Walker  et  al 1  Beas.  140 341 

Buckingham  v.  Corning 2  Stew.  Eq.  238 502,  507,  508 

Buckley  v.  Corse Sax.  504,  509 

132,  134,  287,  289,  306 

Bunyan  v.  Mortimer 6  Madd.  *278 37 

Burgin  v.  Giberson 8  C.  E.  Gr.  403 106,  135 

Burgin  v.  Giberson 11  C.  E.  Gr.  72 334,  636 

Burley  v.  Kitchell Spen.  305 149 

Burnet  v.  Burnet 1  Dick.  Ch.  Kep.  151 270 

Burnham  v.  Bailing 2  C.  E.  Gr  310 179 

Burras  v.  Looker 4  Paige  227 114 

Burton,  In  re 1  Buss.  380 288 

Burton  V.  Neville 2  Cox  S.  C.  242 74 

Buttertield  v.  Third  Ave.  Bank 10  C.  E.  Gr.  533 5 

Byington  V.  Wood 1  Paige  145 63,     65 

Bylandt  v.  Bylandt 2  Hal.  Ch.  28 14,  309 

Byrne  v.  Byrne 2  Mol.  440 146 

Byrne  v.  Frere 1  Mol.  396 169 


Calame  V.  Calame 9  C.  E.  Gr.  440 ;  10  Id.  548 473 

Calanan  v.  Salway McCle.  598 ;  13  Price  799 144 

Camac  v.  Francis 3  Wash.  C.  C.  108 356 

Camden   and   Amboy   R.   E.   Co.   v. 

Stewart 4  C.  E.  Gr.  343 7,  8,  61,  131 

Camden  and  Amboy  E.   E.  Co.   v. 

Stewart 6  C.  E.  Gr.  484 288 

Cammann  v.  Traphagan's  Ex'r Sax.  30...  100 

Campbell  v.  Dewick 5  C.  E.  Gr.  186 240 

Cann  V.  Cann 1  P.  Wms.  567 149,  489 

Cannon  v.  Wright 4  Dick.  Ch.  Eep.  17 342 

Capner  v.  Flemington  Co 2  Gr.  Ch.  467 17,  293 

Cairo  and  Fulton  Co.  v.  Titus 11  C.  E.  Gr.  94 303 

Carleton  v.  L'Estrange 1  Turn.  &  R.  23 135 

Carli.sle  v.  Cooper 3  C.  E.  Gr.  241 117,  279 

Carpenter  v.  E.  &  A.  R.  E.  Co 9  C.  E.  Gr.  408 245 

Carpenter  v.  E.  &  A.  R.  E.  Co 11  C.  E.  Gr.  168 250 

2 


XVIU  INDEX   TO   CASES    CITED. 

Carpenter  v.  Muchmore 2  McCart.  123 324 

Carr  V.  Pass.  Imp.  Co 4  C.  E.  Gr.  424  ;  7  Id.  85 232 

Carrington  V.  Holly Dick.  281 140 

Carris  V.  Carris 9  C.  E.  Gr.  516 474 

Carter  v.  Denman's  Ex'r 3  Zab.  260 343 

Gary  v.  Gary 12  Stew.  Eq.  3 14,  313 

Cassedy  v.  Bigelow 12  C.  E.  Gr.  505 186 

Cater  V.  Devvan Dick.  654 178 

Catlicart  V.  Hewson 1  Hayes  173 71 

Chambers  v.  Dwyer 12  Vr.  95 291 

Chance  v.  Teeple 3  Gr.  Ch.  173 356 

Chancellor  V.  Gummere 12  Stew.  Eq.  582;  13  Id.  279 231 

Chandler  v.  Herriok 3  Stock.  497 106 

Chapin  V.  Broder 16  Cah  403 223 

Chapman  y.  Chapman 10  C.  E.  Gr.  394 452 

Chapman  v.  Harwood 8  Blackf.  82 231 

Chapman  v.  Hunt 1  McCart.  150 333 

Chattin,  In  re 1  C.  E.  Gr.  496 639,  643 

Chegary  v.  Schofield 1  Hal.  Ch.  525 188 

Chester  v.  King 1  Gr.  Ch.  405 341 

Chetwood  V.  Brittan 1  Gr.  Ch.  438 636 

Chews  V.  Driver Coxe  109 78 

Child,  In  re 1  C  E.  Gr.  498 640,  643 

Chiswell  V.  Morris 1  McCart  101 623 

Cholmondeley  v.  Clinton 2  Jac.  &  W.  189 378 

Citizens'  Coach  Co.  v.  Camden 2  Stew.  Eq.  299 288,  290 

Citizens'  Loan  Ass'n,  &c.,  v.  Lyon 2  Stew.  Eq.  110;  3  Id.  732 580 

City  Bank  v.  Bangs.... 2  Paige  570 485 

Claflin  Y.  Voorhees 6  Vr.  484 324 

Clair  V.  Terhune 8  Stew.  Eq.  336 188 

Clark  Y.  Lord  Abingdon 17  Yes.  106 359 

Clark  V.  Keybuin 8  Wall.  318 388 

Clarkson  v.  De  Peyster 3  Paige  336 3 

Clarkson  Y.  De  Peyster Hopk.  505  ;  2  Wend.  77 138 

Clason  Y.  Clason 6  Paige  541 415 

Cliffs  V.  Wilkinson 4  Sim.  123 71 

Close  V.  Close 1  Stew.  Eq.  472 223 

Cockerill  v.  Barber 4  Madd.  172 73 

Coddington  v.  Coddington 5  C.  E.  Gr.  263 452 

Coddington  y.  Molt 1  McCart.  430,  431 132,  133,  134 

Coe  V.  N.  J.  Midland  Ky.  Co 4  Stew.  Eq.  105 334 

Coe  Y.  N.  J.  Midland  Ey.  Co 12  C.  E.  Gr.  110 588 

Coffin  V.  Heath 6  Met.  81 389 

Coke  V.  Wilcocks Mos.  73 103 

Colebrook  Y.Jones Dick.  154 70 

Coles  V.  Coles 2  Beas.  365 442 

Colgar  v.  Colgar 1  Ves.,  Jr ,  94 309 


INDEX   TO   CASES   CITED.  XIX 

■Colgate  V.  Colgate 8  C.  E.  Gr.  372 Ixiii 

Collard  V.  Smith 2  Beas.  43 114 

Collins,  Sarah,  In  re 3  C.  E.  Gr.  253 638 

Collins  V.  Taylor .,...     3  Gr.  Ch.  163 ; IV 

Collinsonv. 18  Ves.  354 15 

Colman  v.  Northcote 2  Hare  147 104 

Colton  V.  Boss 2  Paige  397 11 

Commonwealth  v.  Fisher 2  J.  J.  Marsh.  137 212 

Condict's  Ex'rs  v.  King 2  Beas.  383 '. 487 

Condit  V.  Gregory 1  Zab.  429 325 

Condit  V.  Wood 1  Dutch.  319 79 

Conover's  Ex'rs  v.  Conover Sax.  409 117,  280 

Conover,  In  re 1  Stew.  Eq.  330 650 

Conover  v.  Euckman 6  Stew.  Eq.  303 525 

Conover  v.  Walling 2  McCart.  167,  173 187,  214,  421 

Conover  v.  AVright 2  Hal.  Ch.  613 97 

Conrad  v.  Mullison 9  C.  E.  Gr.  65 284 

Consolidated  Electric  Storage  Co.  v. 

Atlantic  Trust  Co 5  Dick.  Ch.  Kep.  93 37 

Cook  V.  Chapman 3  Stew.  Eq.  114 307 

Cook  V.  Cook 2  Beas.  263 461 

Cook  V.  Gwyn 3  Atk.  689 180 

Cooke  V.  De  Montmorency 1  Hogan  181 82 

Cool's  Ex'rs  V.  Higgins 8  C.  E.  Gr.  308 ;  10  Id.  117... 683,  695 

Cooper  V.  Cooper 1  Stock.  655 197 

Cooper  V.  Green 2  Addams'  Eccl.  Kep.  454 19 

Cooper  V.  Guiger Str.  606 190 

Copeland  v.  Stanton 1  P.  Wms.  414 163 

Corey  v.  Voorhees 1  Gr.  Ch.  5 21 

Corles  V.  Lashley 1  McCart.  116 211 

Corlies  V.  Corlies 8  C.  E.  Gr.  197 171 

Cornelius  V.  Halsey 3  Stock.  27 336 

Cornish  V.  Bryan 2  Stock.  146 566 

Cornish  v.  Tanner 1  Y.  &  J.  333 480 

Cortheal  ads.  Moorehouse 1  Zab.  335 69 

Cortleyeu  v.  Hathaway 3  Stock.  39 372,  373 

Coryell  v.  Bridge  Co 1  Stock.  457 530 

Coryell  V.  Holcombe 1  Stock.  650 188 

Cotes  V.  Turner Bunb.  124 102 

Cotton  V.  Earl  Carlisle 5  Madd.  427 504 

Coulston  V.  Coulston 10  Stew.  P]q.  396 

Coursen  v.  Canfield 6  C.  E.  Gr.  99 107 

Covenhoven's  Case Sax.  19 639,  641,  649,  653 

Coveny  v.  Athill 6  Sim.  439 494 

Cox  V.  Allingham 3  Jac.  339 79 

Coxe  V.  Field 1  Gr,  215 279 

Coxe  V.  Ilalsted 1  Gr.  Ch.  311 213,  219 


XX  INDEX   TO   CASES   CITED. 

Crane  v.  Brighara 3  Stock.  29 324 

Crane  V.  Conklin Sax.  346 606 

Crane  v.  De  Camp 7  C.  E.  Gr.  614 188 

Crawford  V.  Bertholf. Sax.  458 168 

Creveling  v.  Kerr 2  N.  J.  L.  J.  119 317 

Cronkright  v.  Haulenbeck 10  C.  E.  Gr.  513 268,  449 

Crowell  V.  Batsford 1  C.  E.  Gr.  458 18,     36 

Crowell  V.  Hospital  of  St.  Barnabas...  12  C.  E.  Gr.  650 579 

Croxon  v.  Lever 10  Jur.  (N.  S.)  87 389 

Gumming  v.  Waggoner 7  Paige  603 48 

Cummins  v.  Cummins 4  Hal.  Ch.  173 306,  321 

Cummins  V.  Little 1  C.  E.  Gr.  48,  54 213,  218 

Curry  v.  Glass 10  C.  E.  Gr.  108 521 

Curtis  V.  Curtis 2  Bro.  620 626 

Cutting  V.  Dana 10  C.  E.  Gr.  265 142 


Dacie  v.  John 13  Price  117 138 

Dallas  V.  Jeflbrs 1827 279 

Dare's  Adm'rs  v.  Allen's  Ex'r 1  G.  C.  K.  288 6 

Davis  V.  Chanter 2  Phillips  545 57 

Davis  V.  Davis 4  C  E  Gr.  180,  181 15,  469 

Davis  V.  Dean 11  C.  E.  Gr.  436 513,  521 

Davis  V.  Sullivan 6  Slew.  Eq.  569 Ixxxiv 

Davison's  Ex'rs  v.  Johnson 1  C.  E.  Gr.  112 96,  98,  112 

Davison  v.  Perrine 7  C.  E.  Gr.  87 178 

Day  V.  Allaire 4  Stew.  Eq.  303 183 

Day  V.  Day 3  Gr.  Ch.  444 , 462 

Dean  v.  Bonnell 4  N.  J.  L.  J.  348 290 

Decamp  v.  Decamp 1  Gr.  Ch.  294 453 

Decker  v.  Ruckman 1  Stew.  Eq.  614,  617 179,  180,  188 

Decker  v.  Caskey Sax.  427 245 

De  Grieff  v.  Wilson 3  Stew.  Eq.  435 332 

De  Groot  v.  McCotter 4  C.  E.  Gr.  531 , 351 

De  Groot  v.  Eeceivers 2  Gr.  Ch.  198.. 615 

Del.,  L.  &  W.  R.  E.  Co.  v.  Oxford 

Iron  Co 11  Stew.  Eq.  151 588 

Del.,  L.  &  W.  R.  R.  Co.  v.  Scranton...     7  Stew.  Eq.  429 235 

Del.  &  R.  Canal  Co.  v.  Rar.  &  Del. 

Bay  R.  R.  Co 1  McCart.  445 Ixxix 

Delaney  v.  Noble 2  Gr.  Ch.  441 168 

Demarest  v.  Berry 1  C.  E.  Gr.  481 336 

Demarest  V.  Vandenburg 12  Stew.  Eq.  130 164 

Den  v.  Downam 1  Gr.  137 237 

Den  V.  Geiger 4  Halst.  225 279 

Den  v.  Hendrickson 3  Harr.  366 40 

Den  V.  Humphreys 1  Harr.  25 237 


INDEX    TO  CASES    CITED.                                       XXI 

Den  V.  Lambert 1  Gr.  182,  185 239 

Den  V.  Mulford 1  Zab.  500 241 

Den  V.  Steel  man 5  Halst.  193 240 

Den  V.  Taylor 1  Harr.532 -. 237 

Den  V.  Yancleve 2  South.  589,  653 163 

Denton  v.  Denton 1  Johns.  Ch.  441 14 

Denton  v.  Denton 1  Johns.  Ch.364 309 

Denton  v.  Leddell 8  C.  E.  Gr.  64 245 

Derby  v.  Derby 6  C.  E.  Gr.  36,  51,  58. 104,  162,  463 

Devonsher  V.  Newenham 2  Sch.  &  Lef.  199 94 

Dewitt  V.  Ackerraan 2  C.  E.  Gr.  215... 402 

Dexter  v.  Arnold 2  Sumn.  108 357 

Dexter  v.  Arnold 5  Mason  303 507 

Diament  v.  Lore 2  Vr.  220 402 

Dias  V.  Bouchand 10  Paige  445 94 

Dickerson  V.  Hodges 16  Stew.  Eq.  45 110 

Dickey  v.  Allen 1  Gr.  Ch.  40 105 

Dickinson  v.  Mavie 2  Dick.  582 73 

Dillon  V.  Francis Dick.  68 15 

Dinsmore  v.  Westcott 10  C.  E.  Gr.  302 18,  32,  324 

Disborough  v.  Outcalt Sax.  298 512 

Dixon  V.Parke 1  Ves.,  Jr  ,  402 140 

Dodd  V.  Flavell 2  C.  E.  Gr.  255 Ixxxi 

Dodd  V.  Wilkinson 15  Stew.  Eq.  647 122 

Doe  V.  Green 2  Paige  347 15 

Done  V.  Read 2  V.  &  B.  310 114 

Donne  v.  Lewis 11  Yes.  601 180 

Donnelly  v.  State 2  Dutch.  601,  620 163 

Dorsheimer  v.  Eorback 3  C.  E.  Gr.  439 4 

Dorsheimer  v.  Rorback 8  C.  E.  Gr.  46;  10  Id.  576 93,  594 

Dougherty  v.  Bennett 10  Stew.  Eq.  87 9 

Dougherty  v.  Dougherty 4  Hal.  Ch.  540 465,  469 

Doughten  V.  Gray 2  Stock.  323 333 

Doughty  V.  Doughty 12  C.  E.  Gr.  315 559 

Douglass  V.  Merceles 9  C.  E.  Gr.  25 357 

Douglass  V.  Sherman 2  Paige  358 322 

Dowden  v.  Junker 3  Dick.  Ch.  Rep.  554 45 

Downes  v.  East  India  Co 6  Ves.  586 94 

Dudley  v.  Bergen 8  C.  E.  Gr.  397 107 

Duncan  v.  Smith 2  Vr.  325 378 

Dunham  V.  Cox 2  Stock.  437 513 

Dunham  V.  Jackson 1  Paige  629 14 

Dunn  V.  Seymour 3  Stock.  278 331 

Durant  v.  Bacot 2  McCart.  413 636 

Dyson  V.  Benson Cooper's  Ca.  110 92 


XXU  INDEX   TO   CASES   CITED. 


B. 


Eager  v.  Price 2  Paige  333 502 

Eager  v.  Wiswall 2  Paige  369 74,  79 

Eames  v.  Eames 16  Pick.  143;  1  Barb.  Cli.  Pr.  446, 

463  245^ 

Earl  of  Clarendon  v.  Hornby 1  P.  Wms.  447 439 

Easton  v.  Kailroad  Co 9  C.  E.  Gr.  273..,.. 287 

Easton    and    Amboy    P.    R.   Co.   v. 

Greenwich ". 10  C.  E.  Gr.  565 281 

Easton  et  al.  v.  N.  Y.  &  L.  B.  K.  R. 

Co 11  C.  E.  Gr.  359 307 

Eberhart  v.  Gilchrist 3  Stock.  167 8 

Edgar  v.  Clevenger 2  Gr.  Ch.  464 502 

Edgar  v.  Clevenger 1  Gr.  Ch.  258 521 

Ekings  V.  ]S[iirray ' 2  Stew.  Eq.  3S8 202,  239 

Ellice  V.  Roupeli 32  Beav.  299 490 

Elliott  V.  Balcom 11  Gray  286 507 

Elliott  V.  Van  Voorst 3  Wall.,  Jr.,  299 13 

Elmendorf  v.  Delancy Hopk.  555 12 

Elmer  V.  Loper 10  C.  E.  Gr.  475 135 

Ely  V.  Perrine 1  Gr.  Ch.  396 211,  232,  361 

Emans  v.  Elmans 1  McCart.  120 101 

Emans  v.  Wortman 2  Beas.  205 9S 

Embley  V.  Hunt March  T.,  1878 187 

Emery  v.  Downing 2  Beas.  59 34,  81,  349 

Endicott  v.  Mathis 1  Stock.  110 19 

Equitable  Life  Assurance  Society  v. 

Laird 9  C.  E.  Gr  319  ;  Hid.  531..18,  24,  30 

Erskine  v.  Garshore 18  Ves.  114 68 

Esdaile  V.  Molyneux 2  Coll.  642;  llJur.  201 120 

Essex  Paper  Co.  v.  Greacen 18  Stew.  Eq.  504 93 

Evans  v.  Evans 18  Jur.  666 90 

Evans  v.  Veysey McCle.  341 144 

Everly  v.  Rice 3  Gr.  Ch.  553 105 


Facklerv.  Worth  2  Beas.  395 203,  206,  208 

Fairchild  v.  Fairchild 16  Stew.  Eq.  473 cvi 

Faitoute's  Ex'rs  v.  Haycock 1  Gr.  Ch.  105 348 

Falconberg  v.  Pierce Amb.  210 251 

Farquharson  v.  Balfour Turn.  &  R.  189,  190 79,  127,  129 

Farquharson  v.  Pitcher 3  Russ.  383 142 

Farrell,  In  re 6  Dick.  Ch.  Rep.  353 645 

Fawkes  v.  Pratt 1  P.  Wms.  593 12 

Fell  V.  Lutwidge Barn.  320 6 

Feme,  Ex  parte 5  Ves.  450 651 


INDEX   TO   CASES   CITED.  XXllI 

Feriar  v.  Ferrar Dick.  173 61 

Ferris  v.  Bush 1  Edvv.  Cli.  572 676 

Feuchtwanger  v.  McCool 2  Stew.  Eq.  151 104,  113 

Fey  V.  Fey 12  C.  E.  Gr.  213 107 

Field  v.Gibbs Pet.  C.  C.  155 36 

Field  V.  Schieffelin 7  Johns.  Ch.  252 511 

Finch,  In  re Clarke's  Ch.  Rep.  •  538 676 

Firth  V.  Firth 5  Dick.  Ch.  Rep.  137 452 

Fish  V.  K  Y.  Waterproof  Paper  Co....     2  Stew.  Eq.  16,  610 334,  635 

Fisher  V.  Quick 1  Stock.  312 140 

Flagg  V.  Bonnell 2  Stock    82 100,  144 

Flavell  V.  Flavell 5  C.  E.  Gr.  211  ;  7  Id.  599 163,  169 

Fleiscliman  v.  Young 1  Stock.  622 , 5,  521 

Flight  V.  Bolland 4  Russ.  298 4 

Force  v.  Dutcher 3  C.  E.  Gr.  401 232 

Forgay  v.  Conrad 6  How.  204 179 

Fort  V.  Ragusin , 2  Johns.  Ch.  146 146 

Fowler  V.  Roe 3  Stock.  367 496 

Franklin  v.  Keeler 4  Paige  382 ]2l 

Freehold  Mut.  Loan  Ass'n  v.  Brown..     1  Stew.  Eq.  42 

Freeman  v.  Freeman 2  C.  E.  Gr.  44 333 

Freeman  v.  Scofield 1  C.  E.  Gr.  28 332,  342 

Freese  v.  Swayze 11  C.  E.  Gr.  437 40 

French  v.  Griffin 3  C.  E.  Gr.  279 334,  636 

Frescobaldi  v.  Kinaston Str.  783 190 

Frey  v.  Demarest 1  C.  E.  Gr.  236 594 

Frisbie  v.  Bateman 9  C.  E.  Gr.  28 372,  373 

Friits,  In  re 2  Paige  375 4 

Frizzle  V.  Veach 1  Dana  211 239 

Fuller  V  Taylor 2  Hal.  Ch.  301 498 

Fulton  V.  Golden 10  C.  E.  Gr.  353 98 

Fulton  V.  Golden 1  Stew.  Eq.  37 169 

Fulton  V.  Greacen 17  Stew.  Eq.  443 101 

G. 

Garnsey  v.  Mundy 9  C.  E.  Gr.  243 636 

Gale  V.  Morris 2  Stew.  Eq.  222;  3  Id.  285 636 

Galinger  V.  Galinger 4  Lans.  473  ;  61  Barb.  31 467 

Gariss  v.  Gariss 2  Beas.  320,  322 304,  305 

Garth  v.  Ward 2  Atk.  175 343 

Gary  v.  Wittingham 1  Sim.  &  Stu.  163 82 

Gaskill  V.  Sine 2  Beas.  130 144 

Gaylor  V.  Fitz-John 1  Sim.  386.^ 81 

German  Ref.Ch.v.  Von  Puechelstein,  12  C.  E.  Gr.  30 335 

Germond  v.  Germond 4  Paige  643 468 

Gest  V.  Flock 1  Gr.  Ch.  lOS 362 

Gibert  v.  Colt Hopk.  496,  500 14,  310,  311 


XXIV  INDEX   TO   CASES   CITED. 

Gifford  V.  Hort 1  Sch.  &  Lef.  398,  409 184,  187 

Giflbrd  v.  Thorne 3  Hal. Ch.  90;  1  Stock.  702,  703... 

28,    36 

Gihon  V.  Belleville 3  Hal.  Ch.  531,  536 361 

Giles  V.  Eaton 54  Maine  186 114 

Giveans  v.  McMurtrey 1  C.  E.  Gr.  468,  475 24,  37 

Glasser  V.  Glasser 1  Stew.  Eq.  22 466 

Gleason  v.  Bisby Clarke  551 311 

Gleggv.  Leigh. 4  Madd.  207 91 

Glover  T.  Hedges Sax.  113..  183 

Goble  V.  Andruss 1  Gr.  Ch.  66 91 

Goodenough  v.  Goodenough 2  Dick.  795 623 

Goodrich  v.  Pendleton 3  Johns.  Ch.  520 71 

Goodwin  v.  Goodwin... 8  C.  E.  Gr.  210 453 

Gordon  V.  Hobart 2  Story  243 356 

Gordon  v.  Rothley 3  Yes.  572 137 

Gorham  v.  Gorham 3  Barb.  Ch.  24 403 

Gorely  v.  Gorely 25  Beav.  234 276 

Gould  V.  Wheeler 1  Stew.  Eq.  541 331,  341 

Graham  v.  Berryman 4  C.  E.  Gr.  29.,.. 11,  334,  636 

Grane  v.  Cooper..... 4  Mylne  &  C.  263 75 

Grant  V.Grant 3  Russ.  598,  602 313 

Grattan  v.  Wiggins 23  Cal.  16 336 

Gray  v.  Murray 4  Johns.  Ch.  412 169 

Green  v.  Blackwell 5  Stew.  Eq.  768 187 

Green  v.  Blackwell 4  Stew.  Eq.  37 720 

Green  v.  Charnock 3  Bro.  C.  C.  371 69 

Green  v.  Philadelphia  Co 11  C.  E.  Gr.  443 307 

Gregory  v.  Cable 11  C.  E.  Gr.  178 333 

Griffiths  V.  Griffiths 2  Hare  588,  594 281 

Griggs  V.  Gear 3  Gilman  2 508 

Grinnell  v.  Merchants'  Ins.  Co 1  C.  E.  Gr.  283 545 

Griswold  v.  Inman Hopk.  86 144 

H. 

Haggerty  v.  Kixon 11  C.  E.  Gr.  42 5,  521 

Haight  V.  Morris  Aqueduct 4  Wash.  C.  C.  601 115 

Hall  V.  Piddock 6  C.  E.  Gr.  311 442 

Halsted  v.  Fowler 2  Zab,  48 272 

Halsted  v.  Meeker's  Ex'rs 3  C.  E.  Gr.  136 11,  136 

Hamilton  v.  Marks 5  De  G.  &  S.  638 287,  484 

Hammond  v.  Hammond 2  Moll.  312 133 

Hammond  v.  Hammond Clarke  151 467 

Hampton  V.  Coddington 1  Stew.  Eq.  557 15 

Hampton  v.  Nicholson '..     8  C.  E.  Gr.  423 135 

Hanson  v.  Trustees,  &c 3Stock.4U 168 

Hardenburgh  v.  Farmers'  Bank 2  Gr.  Ch.  73 289 


INDEX   TO   CASES   CITED.  XXV 

Hare  V.  Collins 1  Hogan  193 75 

Haring  v.  Kauffman 2  Beas.  397 157,  288,  291 

Harris  V.  Millburn 2  Hagg.  62 57 

Harrison  v.  Farrington 8  Stew.  Eq.  4 18 

Harrison  v.  Harrison 5  Beav.  130 4 

Harrison  V.  Rowan 3  Wash  C.C.580;  4  Id.  32 251 

Harrison  v.  Eowan 4  Wash.  C.  C.  202,  207 343 

Hartshorne  v.  Hartshorne 1  Gr.  Ch.  349 402,  622 

Hatch  Y.  White 2  Gall.  152 363 

Haughwout  V.  Murphv 6  C.  E.  Gr.  118  ;  7  Id.  531 97,  519 

Haulenbeck  v.  Cronkright 11  C.  E.  Gr.  159 403,  442 

Haulenbeck  v.  Cronkright 8  C.  E.  Gr.  407 405,  448 

Hay  V.  Estell 3  C.  E.  Gr.  251 403 

Hav  T.  Estell 4  C.  E.  Gr.  133 442 

Hayes  v.  Lequin 1  Hogan  274 114 

Heathcote  v.  EdAvards Jac.  504 181 

Heaton,  In  re 6  C.  E.  Gr.  221 672 

Hendee  v.  Howe 6  Stew.  Eq.  92 315 

Henderson  V.Hays 12  Vr.  387 240 

Henderson  V.  Hopper April,  1827 21,     36 

Hendrickson  v.  De  Cou Sax.  593 487 

Hendrickson  V.  Ivins Sax  562 636 

Hendrickson  V.  Norcross 4  C  E.  Gr.  417 305 

Hendrickson  V.  Wallace 4  Stew.  Eq.  604 3,     91 

Hendry  v.  Quinan 4  Hal.  Ch.  534 344 

Henwood  v.  Jarvis 12  C.  E.  Gr.  247 306 

Hewitt  V.  Montclair  Ey.  Co 10  C.  E.  Gr.  100,  392;  12  Id.  479... 

213,  284 

Hicks  V.  Campbell 4  C.  E.  Gr.  183,  187 90,  101,  341 

Higbie  v.  Edgarton 3  Paige  253 278 

Higginsv. 8  Ves.381..  138 

Hiles  V.  Coult 3  Stew.  Eq.  40 369 

Hill  V.  Beech 1  Beas.  31,  32 7,  11,  259 

Hill  V.  Colie 10  C.  E.  Gr.  469 106 

Hilles  V.  Parish 1  McCart.  380 2S7 

Hillyer  v.  Schenck 2  McCart.  399 167 

Hilyard  v.  Harrison 8  Vr.  170 79 

Hinckley  v.  Appleby 2  Cox  409 73 

Hitchcock  V.  Ehodes 15  Stew.  Eq.  495 61,  121 

Iloaglandv  Hoagland 1  Gr.  Ch.  511 118 

Hoagland  v.  Titus 1  C.  E.  Gr.  44 183 

Hoboken  Ass'n  v.  Martin 2  Beas.  427 133 

Hodgson  V.  Farrell 2  McCart.  88 219 

Hofr  V.  Burd 2  C.  E.  Gr.  301 510 

Hofifnian  v.  Postil L.  R,  4  Ch.  Ap.  673 116 

Holcombe  v.  Holcombe 2  Stew.  Eq.  375 191 

Holcombe  v.  Holcombe 2  Beas.  417 376 


XXVI  INDEX   TO   CASES   CITED. 

Holdrege  v.  Gwynne 3  C.  E.  Gr.  27 16,  288 

Holman  v.  Holman SDessaus.  210 142 

Holmes  V.  Steele 1  Stew.  Eq.  173 211 

Home  Ins.  Co.  v.  Howell 9  C.  E.  Gr.  238 142 

Hopper  V.  Hopper 1  C.  E.  Gr.  149 253 

Hornby  v.Pemberton Mos.  57 79 

Horner  v.  Corning 1  Stew.  Eq.  254,  258 

26,  32,  36,  211,  362 

Hosack  V.  Rogers 6  Paige  415 138 

Hoiiseworth's  Adm'r  v.  Hendrickson..  12  C.  E.  Gr.  60 314 

Howe  V.  Harvey 8  Paige  74 2 

Howe  V.  Bobbins 9  Stew.  Eq.  19 12 

Howell  V.  Ashmore 1  Stock.  82 ..,.496,  498 

Howell  V.  Sebring 1  McCart.  84 135,  219 

Howling  V.  Butler : 2  Mad.  (Am.  Ed.)  469 103 

Hoxie  V.  Carr 1  Snmn.  173 314 

Hoxie  V.Scott Clarke  457 81 

Hoyt  V.  Hoyt 12  C.  E.  Gr.  399 636 

Hoyt  V.  Newbold 16  Vr.  219 704 

Hudnit  V.  Nash 1  C.  E.  Gr.  550 341,  361 

Huffman  v.  Hummer 2  C.  E.  Gr.  263,  269,  271 

106,305,  306 

Hugg  V.  Hugg June,  1877 80 

Hughes  V.  Blake 6  Wheat   472 144 

Hughes  V.  Nelson 2  Stew.  Eq.  547 559 

Hughes  V.  Evan 1  Beatty  327 14 

Humphreys  V.Humphreys 3  P.  Wms.  351 6,  133 

Humphreys  V.  Ingledon 1  P.  Wms.  752 6 

Hume  V.  Babington 1  Hogan  8 143 

Hunt  v.  Field 1  Stock.  36 521 

Hunt  V.  Hunt 2  Stew.  Eq.  96 461 

Hunt  V.  Wallis 6  Paige  371 278 

Hurlburt  v.  McKay 8  Paige  651 259,  260 

Hyer  v.  Little 5  C.  E.  Gr.  443 114 

I. 

Iglehart  v.  Bierce 86  111.  133 332 

Innes  v.  Lansing 7  Paige  583,  584 528,  530 

Irick  V.  Black 2  C.  E.  Gr.  189, 190 341,  588 

Irving  V.  Viana 1  McCle.  &  Y.  563 122 

Isham  V.  Miller 17  Stew.  Eq.  61 110 

Isnard  v.  Cazeaux 1  Paige  40 73^ 

J. 

Jackson  v.  Bell 4  Stew.  Eq.  514;  5  Id.  411 559 

Jackson  V.  Bush 19  Johns.  223 240 

Jackson  v.  Darcv Sax.  194 615 


INDEX   TO   CASES   CITED,  XXVll 

Jackson  V.  Edwards 7  Paige  386 405 

Jackson  v.  Grant 3  C.  E.  Gr.  147 510 

Jackson  v.  Hawarth 1  S.  &  S.  161 81 

Jackson  v.  Jackson 2  Gr.  Ch.  96 162 

Jackson  v.  People's  Bank 1  Stock.  205 195 

Jackson  v.  Petrie 10  Ves.  161 309 

Jackson  V.  Receiver 1  Stock.  205 551 

Jackson  v.  Young 5  Cowen  269 233 

James  V.  McKernan 6  Johns.  543 10 

Jenkins  V.  Eldredge 3  Story  299 183 

Jennings  v.  Jennings 2  Beas.  38 458 

Jennings  V.  Nugent 1  Moll.  134 487 

Jenour  v.  Jenour 10  Ves.  562,  568 179 

Jersey  v.  Demarest 12  C.  E.  Gr.  299 223 

Jervis  v.  White 6  Ves.  737 137 

Jesson  V.  Brewer Dick.  370 180 

Jewett  V.  Bowman 2  Stew.  Eq.  174 11 

Jewett  V.  Bowman 12  C.  E.  Gr.  275 14,  313 

Jewett  V.  Dringer 12  C.  E.  Gr.  271 47 

Jewett  V.  Dringer 2  Stew.  Eq.  199 189 

Jewett  V.  Dringer 4  Stew.  Eq.  586 559 

Jewett  V.  Dringer 9  Stew.  Eq.  199 194 

Johnson  V.  Arnwine 13  Vr.  460 159 

Johnson  v.  Ashton 1  Sim.  &  Stu.  73 137 

Johnson  v.  Bantock 38  111.  Ill 239 

Johnson  v.  Buck 6  Vr.  339 232 

Johnson  v.  Garret 1  C.  E.  Gr.  31 211 

Johnson  v.  Pinney 1  Paige  646 40 

Johnson  v.  Poulson 5  Stew.  Eq.  390 191 

Johnson  v.  Todd 3  Beav.  218 73 

Johnson  v.  Vail 1  McCart.  423 3,  93,  104,  332 

Jones  V.  Coxeter 2  Atk.  309 73 

Jones  V.  Fayerweather 1  Dick.  Ch.  Rep.  237 528 

Jones  V.  Gilham 1  Coop.  C.  C.  49 486 

Jones  V.  Jones 3  Atk.  Ill 176 

Jones  V.  Jones 3  C.  E.  Gr.  33 456 

Jones  V.  Jones 2  C  E.  Gr.  351 462 

Jones  V.  Knauss 6  Stew.  Eq.  188 69 

Jones  V.  Sherwood 2  Hal.  Ch.  210 496 

Jordan  v.  Clark 1  C.  E.  Gr.  243,  247 356,  361 

Jordan  v.  Williams 3  Rand.  501 292 

K. 

Kamena  v.  Huellng 8  C.  E.  Gr.  78 331 

Karrv.  Karr 4  C.  E.  Gr.  427 30 

Kelly  V.  Eckford 5  Paige  548,  549 74,     75 

Kelsham  v.  Crowther 2  L.  J.,  Ch.  85 82 


XXVlll  INDEX   TO   CASES   CITED. 

Kemble  v.  Harris 7  Vr.  526 214 

Kendall  v.  Marsters 2  De  G.,  F.  &  J.  200 181 

Keron  v.  Coon 11  C.  E.  Gr.  26 305 

Kerr  v.  Gillespie 7  Beav.  269 2,     69 

Killgore  v.  Peden 1  Strobh.  (Law)  18 213 

King  V.  Euckman 7  C.  E.  Gr.  551 186,  188 

Kinnav.  Smith 2  Gr.  Ch.  14 332 

Kinney  v.  Emery 10  Stew.  Eq.  339 19 

Kinney  V.  Ewing 10  Stew.  Eq.  339.. Ix. 

Kip  V.  Kip 6  Stew.  Eq.  213 9 

Kirby  v.  Taylor 6  Johns.  Ch.  242 122 

Kirkpatrick  v.  Corning 13  Stew.  Eq.  254 cix 

Kirrigan  v.  Kirrigan 2  McCart.  146 469 

Kirtland's  Adm'r  v.  Kirtland 11  C.  E.  Gr.  276 286 

Kirwan  v.  Blake 1  Hogan  158 138 

Kline  v.  McGuckin 9  C.  E.  Gr.  411 404 

Kloepping  ads.  Stellmacher 7  Vr.  176,  177,  178 18,  182 

Knight  V.  Yarborough 7  S.  &  M.  179 487 

Knowles  V.  Gwinnui) Jan.,  1828 120 

Knox  V.  Costello Burr.  1789 190 

L. 

Lacey  V.  Bowlby April,  1825 402 

Langdon  V.  Potter 11  Mass.  313 6 

Lanning  V.  Lanning 2  C.  E.  Gr.  228 Ixx 

Large  v.  Van  Doren 1  McCart.  208 332,  378 

Lawrence  v.  Bolton 3  Paige  294 136 

Lawrence  v.  Finch 2  C.  E.  Gr.  235 149,  151 

Lawrence  V.  Greenwich  Ins.  Co 1  Paige  587 33 

Lawrence  v.  Richmond 1  J.  &  W.  241 180 

Laroche  v.  Hasbrough 2  Durn.  &  E.  737 190 

Laurie  v.  Laurie 9  Paige  234 291 

Leaning  v.  Leaning 10  C.  E.  Gr.  241 460 

Leddell's  Ex'r  v.  Starr 4  C.  E.  Gr.  159 336,  510 

Leddell's  Ex'r  v.  Starr 5  C.  E.  Gr.  274 480 

Lee  Y.Cargill 2  Stock.  331 13,  20,  291 

Leggett  V.  Sellon 3  Paige  84 122 

Leonard  v.  New  York  Bay  Co 1  Stew.  Eq.  192 32 

Leonard  v.  Sutphen 3  Hal.  Ch.  545 146 

Leslie  V.  Leslie 5  Dick.  Ch.  Rep.  155  cix 

Leveridge  v.  Marsh 3  Stew.  Eq.  59 341 

Lewis  Y.  Conover N.  J.  Chan.,  1870 43 

Liddell  V.  McVickar 6  Halst.  44 265 

Lillie  V.  Lillie 2  Myl.  &  Keene  401 70 

Lindsay  v.  Gibbon 3  Bro.  495 625 

Lindsley's  Case 17  Stew.  Eq.  564 639,  650 

Lindsley's  Case 1  Dick.  Ch.  Rep.  358 647,  653 


INDEX   TO   CASES    CITED.  XXIX 

Lingan  v.  Henderson 1  Bland  251 11 

Linn  v.  Neldon 8  C.  E  Gr.  169 588 

Linn  v.  Wheeler 6  C.  E.  Gr.  231 275 

Litham  v.  Eoyle 2  C.  E.  Gr.  40 Ixxxiv 

Little  y.  Cooper 2  Stock.  273 496 

Little  V.  Johnson 1  Moll.  234 276 

Livingston  v.  Clarkson 4  Edw.  Ch.  596 442 

Lloyd  V. Dick.  460 37 

London  Assurance  v.  East.  India  Co...     3  P.  Wms.  326 95 

Long  V.  Burton 2  Atk.  218 136 

Long  V.  Tardy 1  Johns.  Ch.  202 69,  71 

Long's  Adm'r  v.  Long 1  C.  E.  Gr.  59,  67' 359 

Long  Branch  and  Sea  Shore  R.  K. 

Co.,  In  re 9  C.  E.  Gr.  403 Ixxxiii 

Long  Dock  Co.  v.  Bentley 10  Stew.  Eq.  15 559 

Lord  Brook  v.  Lord  Hertford 2  P.  Wms.  519 403 

Lord  Herbert  v.  Pusey 1  Dick.  255 120 

Lord  North  v.  Lord  Gray 1  Dick.  14 489 

Lord  Uxbridge  v.  Staveland 1  Ves.,  Sr.,  56 8 

Loss  V.  Obry 7  C.  E.  Gr.  52 636 

Lothrop's  Case 6  Stew.  Eq.  246 57 

Lovett  V.  Demarest 1  Hal.  Ch.  113 144 

Low  V.  Holmes 2  C.  E.  Gr.  150 404 

Lozier  v.  Van  Saun 2  Gr.  Ch.  325 480 

Lucas  V.King , 2  Stock.  277 403 

Ludington  V.  Elizabeth 5  Stew.  Eq.  159 94 

Lupton  V.  Pearsall 2  Johns.  Ch.  429 75 

Lyne  V.  Pennell Sim.  (N.  S.)  113 481 

Lyon  v.Talmadge 1  Johns.  Ch.  184 133 

Lyons  V.  Van  Eiper 11  C.  E.  Gr.  337 322 

M. 

MacDonough  v.  Gaynor 3  C.  E.  Gr.  249 14,  309,  313,  314 

Mackworth  v.  Marshall 3  Sim.  370 82 

Magennis  V.  Parkhurst 3  Gr.  Ch.  433 48,49 

Magrath  v.  Veitch 1  Moll.  234 276 

Mahnken's  Case 9  Stew.  Eq.  520 701 

Mahon  v.  Crothers 1  Stew.  Eq.  567 372 

Mallack  v.  Gorton 2  P.  Wms.  352 389 

Maltby  v.  Phillot... 1  Fowler's  Ex.  Pr.  443 61 

Man  V.  Eicketts ,  3  De  G.  c^- S.  446 20O 

Manfort  v.  Rowland 11  Stew.  Eq.  181 164 

Manhattan  Mfg.  Co.  v.  Van  Keuren...     8  C.  K.  Gr.  251 304 

Manners  v.  Manners 1  Gr.  Ch.  384 403 

Marker  v.  Marker 3  Stock.  356 457 

Marlatt  v.  Warwick 4  C.  E.  Gr.  445 314 

Marselis  v.  Morris  Canal  Co Sax.  35 5 


XXX  INDEX   TO   CASES   CITED. 

Marsh  v.  Lasher 2  Beas.  253 106 

Marsh  v.  Marsh 1  C.  E.  Gr.  391,  392,  398 

12,  91,  93,  134,  453 

Marsh  v.  Marsh 2  Beas.  283 456 

Marsh  v.  Marsh 1  McCart  315 452,  465 

IMarsh  v.  Mitchell 11  C.  E.  Gr.  497 104 

Martin  v.  Melville 3  Stock.  222 351 

Matthews  v.  Durvee 46  Barb.  69 256 

Matthews  v.  Hoagland 3  Dick.  Ch.  Rep.  491 594 

Matthews  Y.  Roberts 1  Gr.  Ch.  333 98 

Maund  V.  Allies 4  Mylne  &  C.  503 75 

McArthur  v.  Montclair  R'y  Co 12  C.  E.  Gr.  77 376 

McBride  v.  Farmers'  Bank 2  N.  Y.  457 332 

McBroom  v.  Somerville 2  Stew.  (Ala.)  515 142 

McCahill  v.  Equitable  Society 11  C.  E.  Gr.  533 29 

McCall  V.  Yard 3  Stock.  58 331 

McClane's  Adm'r  v.  Shepperd's  Ex'r..     6  C.  E.  Gr.  76,  78 97,  143 

McClurg  V.  Terry 6  C.  E.  Gr.  225 474 

McCotter  v.  De  Groot 4  C.  E.  Gr.  72 351 

McCullough  V.  Merchants'  Loan  Co...     2  Stew.  Eq.  217 536 

McCurdy  v.  Agnew 4  Hal.  Ch.  728 187 

McDonald  v.  Logsdon 3  Bibb  229 141 

McDowell  V.  Perrine 9  Stew.  Eq.  632 183,  184 

McEvoy  V.  Trustees 11  Stew.  Eq.  420 19,  104 

McEwanv.  Broadhead 3  Stock.  129 ...98,  144 

McGee  v.  Smith 1  C.  E.  Gr.  463 362 

McGregor  v.  Topham 4  Hare  162 252 

Mclntyre  v.  Union  College 6  Paige  240,  254 67,  120 

McKel way  V.  Armour 2  Stock.  115 636 

McKillop  V.  Taylor 10  C.  E.  Gr.  139 291 

McKinna  v.  Smith 2  Gr.  Ch.  14 331 

McLaughlin  v.  McLaughlin 7  C.  E.  Gr.  505 267,  448,  625 

McMahon  v.  Kimball 3  Blackf.  1 623 

McMillan  v.  N.  Y.  Waterproof  Paper 

Co 2Stew.  Eq.  610 635 

McNamara  V.  Dwyer 7  Paige  289 6 

McPherson  v.  Housel 2  Beas.  35 19,  28 

McShane  V.  McShane 18  Stew.  Eq.  341 460 

McTighe  v.  Dean 7  C.  E.  Gr.  81 137 

Mead  v.  Combs 11  C.  E.  Gr.  173 106 

Measurall  V.  Pearce .4  Atl.  Rep.  678 351 

Mechanics'   Bank   v.   Bank   of   New 

Brunswick 2  Gr.  Ch.  437,  438 530,  548 

Mechanics'  Bank  v.  Levy 3  Paige  606 10 

Mechanics'  National  Bank  v.  Burnet 

Mfg.  Co 5  Stew.  Eq.  236 533 

Mechanics'  National  Bank  v.  Burnet 

Mfg.  Co 6  Stew.  Eq.  486 559 


INDEX   TO  CASES   CITED.                                  XXxi 

Meeker  V.  Butler's  Ex'r Sax.  204 103 

Meeker  V.  Marsh's  Ex'r Sax.  198 98 

Melick  V.  Melick 2  C.  E  Gr.  156 94 

Merchants'  Bank  v.  Stevenson 7  Allen  489 101 

Merchants'  Ins.  Co.  v.  Marvin 1  Paige  557 107 

Meredith  v.  Banks 1  Halst.  408 359 

Merwin  v.  Smith 1  Gr  Ch.  182,  192 219,  304,  306 

Methodist  Episcopal  Church  v.Jaques,     1  Johns.  Ch.  65 10,  131 

Metier  v.  Metier 4  C.  E.  Gr.  457 496 

Meux  V.  Bell 6  Sim.  175 485 

Meyer  v.  Paterson 1  Stew.  Eq.  239 21,  213,  235,  241 

Michoud  V.  Girod 4  How.  503 179 

Middlesex  Freeholders  v.  State  Bank,     1  Stew.  Eq.  166 536 

Midmer  v.  Midmer 11  C.  E.  Gr.  299 136 

Miller's  Adm'r  v.  Miller 11  C.  E.  Gr.  423 

63,  64,  65,  124,  356,  357 

Miller  V.  Craig 3  Stock.  176 287 

Miller  v.  Gregory 1  C.  E.  Gr.  274.... 510 

Miller  V.  Henderson 2  Stock.  320 331 

Miller  v.  Howard 11  C.  E.  Gr.  166 628 

Miller  v.  Jamison 9  C.  E.  Gr.  41 93 

Miller  v.  MacKenzie 2  Stew.  Eq.  291 497 

Miller  V.  Miller 5  C.  E.  Gr.  216 453,  462,  4(53 

Miller  V.  Miller 1  Gr  Ch.  139 163,  462 

Miller  v.  Miller Sax.  386 313,  455,  469,  473 

Miller  ads.  Shreve 5  Dutch.  250 333 

Miller  v.  Traphagen 2  Hal.  Ch.  200 275 

Miller  V.  Wack Sax.  204.  210 16,  105,  245 

Mills  V.  Dennis 3  Johns.  Ch.  368 389 

Mills  V.  Hoag 7  Paige  18 179 

Mims  V.  Mims 3  J.  J.  Marsh.  105 141 

Mitchell  V.  Bunch 1  Paige  606 14 

Monfort's  Adm'r  v.  Rowland 11  Stew.  Eq.  181 cvii 

Monmouth  Ins.  Co.  v.  Hutchinson 6  C.  E.  Gr.  107 566 

Montgomery  v.  Montgomery 3  Barb.  Ch.  132 475 

Moores  v.  Moores 1  C.  E.  Gr.  275 105,  458 

Morgan,  In  re 7  Paige  236 638 

Morgan  v.  Morgan 1  Stew.  Eq.  23 40 

Morgan  v.  Eose 7  C.  E.  Gr.  584 188 

Morris  v.  Taylor 8  C.  E.  Gr.  131,  134 65,  172,  173 

Morris  v.  White 9  Stew.  Eq.  324 107 

Morris  v.  Woodward 10  C.  E.  Gr.  32 213 

Morris  Canal  Co.  v.  Bartlett 2  Gr.  Ch  9 303,  304 

Morris  Canal  Co.  v.  Mitchell 2  Vr.  99 18 

Morrison  V.  Arnold 19  Ves.  670 494 

Mortimer  v.  Cropsey 1  Hoff.  Ch.  Pr.  194 19 

Mortimer  v.  Hartley 3  De  G.  &  Sm.  321 90 

Mosser  v.  Pequest  Co 1 1  C.  E.  Gr.  200 178 


XXXll  INDEX   TO   CASES   CITED. 

Mott  V.  Shreve 10  C.  E.  Gr.  438 336 

Mount  V.  Mount 2  McCart.  162 463 

Mount  V.  Potts 8C.  E.  Gr.  188 369 

Mount  Holly  Turnpike  Co.  v.  Ferree,     2  C.  E.  Gr   117 480,  484 

Mousley  v.  Basnett 1  Ves.  &  Bea.  382 118,  280 

Mower  v.  Kip 6  Paige  88 359 

Mulford  V.  Geshiat 1  Harr.  272 70 

Mulford  V.  Peterson 6  Vr.  127 ....  331 

Mullbrd  V.  Eeilly 5  Stew.  Eq.  419 Ix 

Mulford  V.  Williams 4  Hal.  Cli.  536 354 

Mulock  V.  Muiock 1  Stew.  Eq.  15 169,  177 

Mulock  V.  Mulock 11  C.  E.  Gr.  461 304,  305 

Mundy  V.  Mundy 2  Ves.,  Jr  ,  129, 62S 

Murdock's  Case 2  Bland  461,  486 301 

Murphy  V.  Stults Sax.  561 174 

Murray  V.  Elston 8  C.  E.  Gr.  212 157 

Mutual  Life  Ins.  Co  v.  Gould 7  Stew.  Eq.  417 235 

Mutual  Life  Ins.  Co,  v.  Southard 10  C.  E.  Gr.  337. 223 

Mutual  Life  In,s.  Co.  v.  Sturgis 6  Stew.  Eq.  328 9 

Mutual  Life  Ins.  Co.  v.  Sturgis 5  Stew.  Eq.  684 343 

Myer  v.Myer IOC.  E.  Gr.  28 313 

N. 

Nash  V.  Smith 6  Conn.  421 485 

Nat.  Bank  of  Metropolis  v.  Sprague..  8  C.  E.  Gr.  81 ;  8  Id.  458  ..Ixxxiv,     63 

Needham  V.  Smith 6  Beav.  130 105 

Nesbit  V.  St.  Patrick's  Church 1  Stock.  76 34 

Newv.  Bame 10  Paige  498 502 

Newark  and  New  York  R.  R.  Co.  v. 

Mayor,  &c.,  of  Newark 8  C.  E.  Gr.  515 245 

Newark  Plank  Road  Co.  v.  Elmer 1  Stock.  754,  785 179,  251 

New  Brunswick  Co.  v.  Baldwin 2  Gr.  440 17 

Newbury  v.  Marten 15  Jur.  166,  V.  C.  Ld.  C 389 

New  Foundland  Ry.  Construction  Co. 

v.Scliack 13  Stew.  Eq.  222 530 

New  Jersey  Express  Co.  v.  Nichols...     3  Vr.  166 159 

New  Jersey  Franklinite  Co.  v.  Ames..     1  Beas.  507 136,  332 

N.  J.  Zinc  Co.  V.  Franklinite  Co 1  McCart.  308 182,  183 

Newman  V.  Kendall .'...     2  A.  K.  Marsh.  236 169 

Newman  v.  Landrine 1  McCart.  291 69 

Newman  v.  Newman 3  Hal.  Ch.  26 88,  152 

Nichols  V.  Williams 7  C.  E.  Gr.  64 2 

Noel  V.  Fitzgerald 1  Hogan  135 169 

Noel  V.  Noel 9  C.  E.  Gr.  137 453 

Norcom  V.  Rogers 1  C.  E.  Gr.  484 4,7 

Norris  v.  Kennedy 12  Ves.  66  ;  19  Id.  112 104 

Northcote  v.  Northcote Dick.  22;  Coll.  P.  C.  288 120 

Noyes  v.  Savage 3  Vt.  160 332 


INDEX   TO   CASES   CITED.  XXXlll 

O. 

Oakley  V.  O'Neil 1  Gr.  Ch.  287 34 

Oakley  V.  Pound 1  McCart   178 521 

Obert  V.  Obert 1  Hal.  Ch.  397  ;  2  Stock.  98 403 

O'Brien  v.  Hulfish 7  C.  E.  Gr.  477 131 

Ocean  Beach  Ass'n  v.  Brinley 7  Stew.  Eq.  439 622 

Ogden  V.  Gibbons July  Term,  1823 12,  13a 

Ogden  V.  Gibbons July  Term,  1828 91 

Ogden  V.  Gibbons 2  South.  *532 157 

Ogden  V.  Robertson 3  Gr.  124 146 

O'Kill  V.  Campbell 3  Gr.  Ch:  13 720 

Oliver  V  Piatt 3  How.  333 363 

Onderdonk  v.  Gray 4  C.  E.  Gr.  65 510 

Opdyke  v.  Parties 3  Stock.  133 377 

Oram  v.  Dennison 2  Beas.  438 28,     35 

Ormsby  v.  Palmer 1  Hogan  191 81 

O'Rourke  V.Cleveland 4  Dick.  Ch.  Eep.  577 49 

Osborn  V.  Cowper Mos.  198 103 

Osborne  v.  O'Keilly 7  Stew.  Eq.  60 168 

Osborne  V.  Tunis 1  Dutch.  633 237 

Osborne  v.  Williams 13  Stew.  Eq.  490 Ixxxvi 

Cutwater  v.  Berry 2  Hal.  Ch.  63 503 

Owing'sCase 1  Bland  373 57 


Palk  V.Clinton 12  Ves.  59 , 378 

Palmer  v.  Casperson 2  C.  E.  Gr.  204..., 178,  622 

Pannell  v.  Taylor Turn.  &  R.  100 311 

Paradise  v.  Sheppard Dick.  136 73 

Pardee  v.  De  Gala 7  Paige  132 513 

Parker  V.  Baker 8  Paige  428 279 

Parker  V.  Carter 4  Munf.  273 9 

Parker  V.  Child 10  C.  E.  Gr.  41 377,  628 

Parker  v.  Hayes 8  C.  E.  Gr.  186 146,  170 

Parker  v.  Parker 1  Beas.  105 14 

Parker  v.  Stevens 2  Gr.  Ch.  56 341 

Parkhurst  v.  Cory 3  Stock.  233 211 

Parsons  v.  Heston 3  Stock.  155 8 

Parsons  v.  Lanning 12  C.  E.  Gr.  70 218 

Parsons  v.  Monroe  Mfg.  Co 3  Gr.  Ch.  187 530 

Patterson  V.  Paterson 1  Hayw.  167 142 

Paterson  v.  Paterson 1  Hal.  Ch.  389 465 

Patereon   and   Hudson   R.   R.  Co.  v. 

Jersey  City 1  Stock.  434 8,  615 

Patrick  v.  Warner 4  Paige  397 43,  209 

Paulison  v.  Van  Iderstine 1  Stew.  Eq.  306 3,  332 

3 


XXXIV  INDEX   TO   CASES   CITED. 

Pears  v.  Bache Coxe  206 324 

Peck  V.  Beechey 2  Sim.  40 73 

Peer  v.  Cookerow 2  Beas.  136 187,  315,  322 

Peer  V.  Cookerow 1  McCart.  361 188,  315 

Peirce  v.  West 1  Pet.  C.  C.  351 144 

Pelletreau,  Ex'r,  v.  Eathbone Sax.  331 6 

Pence  v.  Pence 2  Beas.  257 341 

Penford  v.  Nunn  5  Sim.  409 75 

Penn  v.  Craig 1  Gr.  Cli.  495 213 

Penn  Mut.  Ins.  Co.  V.  Semple 11  Stew.  Eq.  314 194 

People  V.  Bennett 4  Paige  282 43 

People  V.  Rogers 2  Paige  103 43 

People,  The,  V.  Brower 4  Paige  405 277 

Perine  v.  Dunn 4  Johns.  Ch.  140 384,  385 

Perine  v.  Swaine 1  Johns.  Ch.  24 82 

Perishall  V.  Squire Dick.  31 73 

Perkins  v.  Collins 2  Gr.  Ch.  482 16,  113,  278,  287,  288 

Perkins  v.  Partridge 3  Stew.  Eq.  559 508 

Perry  v.  Carr 41  N.  H.  371 9 

Phelps  V.  Curtis 1  Gr.  Ch.  387 116 

Philadelphia  and  Eeading  R.  E.  Co. 

V.  Little 14  Stew.  Eq.  519,  525 290 

Philhower  V.  Todd; 3  Stock.  54 8 

Philips  V.  Langhorn Dick.  148 101 

Phillips  V.  Kinney MS.,  Williamson,  C 174 

Phillips  V.  Muilman 3  Atk.  391 68 

Phillips  V.  Schooley 12  C.  E.  Gr.  410 8 

Phoenix  v.  Clark 2  Hal.  Ch.  447 297 

Pickle  V.  Pickle July,  1823,  Ch'y 72 

Picton  V.  Lockett April,  1837 93 

Pierce  v.  West's  Ex'r 3  Wash.  C.  C.  354 136 

Pillow  V.  Pillow 5  Yerg.  420 11 

Pillsbury  V.  Kingon 6  Stew.  Eq.  287 512 

Pincers  v.  Robertson 9  C.  E.  Gr.  348 15,  16,  89,  113 

Plum  V.  Morris  Canal  Co 2  Stock.  256 3 

Pollitt  V.  Kerr 4  Dick.  Ch.  Eep.  65 626 

Potter  V.  Hora May  Term,  1878 55 

Powell  V.  Mayo 11  C.  E.  Gr.  120 135 

Powell  V.  Mayo 9  C.  E.  Gr.  178 ....  615 

Powell  V.  Prentice Eidg.  P.  C.  258 82 

Price  V.  Carver 3  M.  &  C.  157 389 

Price  V.  Dewhurst 4  Myl.  &  C.  282 186 

Price,  In  re 4  Hal.  Ch.  533 656 

Price  V.Shaw '. 2  Cox  184 68 

Price  V.  Sisson 2  Beas.  168  ;  2  C.  E.  Gr.  476 182 

Priest  V.Hamilton 2  Tyler  49 4 

Prince  v.  Prince 10  C.  E.  Gr.  310 463 


INDEX    TO    CASES   CITED.  XXXV 

Princess  of  Wales  v.  The  Earl  of  Liv- 
erpool      1  Swanst.  Eep.  114 75 

Prior  V.White 2  Moll.  361 70,  82 

Proctor  V.  Farnum 5  Paige  614 = 239 

Prudden  v.  Lindsley 1  Stew.  Eq.  381 245 

Prudden  v.  Lindsley 4  Stew.  Eq.  436 250 

Pruden  v.  Williams" 11  C.  E.  Gr.  210 576 

Public  Schools  Y.  Walker 9  Wall.  603 186 

PuUen  V.  Pullen 2  Stew.  Eq.  541 459,  460 

Purcell  V.  Purcell 3  Edw.  Ch.  194 468 

Putnam  v.  Clark 8  Stew,  Eq.  145 198 

Putnam  v.  Clark 9  Stew.  Eq.  33,  647 508 

Q 

Quackenbusli  V.  Van  Piper Sax.  476 105 

Quarrell  v.  Beckford 14  Ves.  177 137 

Quincy  v.  Cheesman 4  Sandf.  Ch.  405 373 

R. 

Eailroad  Co.  v.  Newark 8  C.  E.  Gr.  515 245 

Kaleigh  v.  Eogers 10  C.  E.  Gr.  507 187 

Eandolph  v.  Daly 1  C.  E.  Gr  313 8,  513 

Eandolphv.N.J.WestLineE.E.Co..     1  Stew.  Eq.  49 635 

Eansom  V.  Savings  Bank 2  Beas.  212 115 

Eatzer  v.  Eatzer 2  Stew.  Eq.  162 189 

Ea^nisley  v.  Trenton  Mut.  Life  Ins. 

Co 1  Stock.  95,  347 530 

Eaymond  v.  Post 10  C.  E.  Gr.  447 286 

Eead  V.  Huff. 13  Stew.  Eq.  229 403 

Eeading  v.  Wilson 11  Stew.  Eq.  446 62 

Eeed  v.  Cumberland  Ins.  Co 9  Stew.  Eq.  393 120,  122 

Keese  Eiver  Mining  Co.  v.  Atwell L.  R.  (7  Eq.)  347 521 

Eeid  V.  Eeid 6  C.  E  Gr.  331 462 

Eenwick  v.  Wilson 6  Johns.  Ch.  81 134 

Eeynolds  v.  Eeynolds 5  Paige  161 413 

Eice  V.  Eice 2  Dick.  Ch.  Eep.  559 164 

Eichards  v.  Barlow 1  Paige  323 131 

Richards  v.  Morris  Canal  Co 3  Gr.  Ch.  431 549 

Eichards  v.  West 2  Gr.  Ch.  456 291 

Eichardson  v.  Hastings 7  Beav.  58 91 

Eichmond  v.  Richmond 1  Gr.  Ch.  90 473 

Rico  V.  Gaultier 3  Atk.  501 309 

Rigby  V.  McNamara 6  Ves.  515 239 

Riky  V.  Kemmis 1  Beatty  317 136 

Rinehart's  Ex'rs  v.  Einehart 2  McCart.  44 6,  332 

Eiper  V.  Claxton 1  Stock.  302 135 

Rittenhouse  v.  Eittenhouse 2  Stew.  Eq.  274 457,  461 


XXXVl  INDEX   TO   CASES   CITED. 

Eiverview  Cemetery  Co.  v.  Turner....     9  C.  E.  Gr.  18 403 

Bobbins  v.  Abrahams 1  Hal.  Ch.  16. 82 

Robert  v.  Hodges 1  C.  E.  Gr.  299 122,  512,  513,  521 

Eobertson  v.  Miller 2  Gr.  Cli.  452 35 

Eockwell  V.  Morgan 2  Beas.  384 622 

Rodney  v.  Hare :\Ios.  296 144 

Rogers,  In  re 1  Hal.  Ch.  46 658,  660 

Rogers  v.  Nowell 6  Hare  338 252 

Rogers  V.  Paterson 4  Paige  409,  415 187 

Rogers  V.  Rogers 3  C.  E.  Gr.  445 31 

Rogers  V.  Rogers 1  Paige  424 133 

Rogers  V.  Vosburg 4  Johns.  Ch.  84 117,  280 

Roll  V  Smalley 2  Hal.  Ch.  464 361 

Romaine  v.  Hendrickson's  Ex'rs 9  C.  E.  Gr.  231 10 

Root,  In  re 8  Paige  627 643 

Rorback  v.  Dorsheimer 10  C.  E.  Gr.  516 8 

Rorback  v.  Van  Blarcom 5  C.  E.  Gr.  461 187 

Rose  V.  Gannell 3  Atk.  439 490 

Rose  V.  Rose 11  Paige  166 291 

Ross  V.  Hattield 1  Gr.  Ch.  363 315 

Rothwell  V.  Rothwell 2  Sim.  &  Stu.  217 137 

Rowe  V.  Hoagland's  Adm'rs 3  Hal.  Ch.  139 487 

Rowe  V.  Matteson 3  Hal.  Ch.  131 485 

Ruckman  v.  Decker. 8  C.  E.  Gr.  283 97 

Ruckman  v.  Decker 12  C.  E.  Gr.  244 180 

Ruckman  v.  Decker 1  Stew.  Eq.  5  ;  6  Id.  545 181 

Rump  V.  (ireenhill 20  Beav.  512.. 93 

Rusling  V.  Bray 11  Stew.  Eq.  398 184 

Rutgers  v.  Kingsland 3  Hal.  Ch.  178,  658 334,  636 

Ryerson  v.  Adams 2  Hal.  Ch.  618 361 

Ryerson  v.  Boorman 3  Hal.  Ch.  167,  640 211 

S. 

Salmon  v.  Clagett 3  Bland  125 122 

Sanders  v.  Sanders 2  Stew.  Eq.  410 458 

Sanderson  V.  Price 1  Zab.  637 372 

Sandford  v.  Clarke 11  Stew.  Eq.  265 67 

Savings  Association  V.  Vandevere 3  Stock.  382 342 

Scales  V.  Nichols 3  Hay.  (Tenn.)  231 136 

Scanlan  v.  Howe 9  C.  E.  Gr.  273 287 

Schenck  V.  Conover 2  Beas.  31,  220 

188,  189,  194,  202,  203 

Schmidt  v.  Schmidt 2  Stew.  Eq.  496 463 

Schockley  V.  Schockley 20  Ind.  108 332 

Scott  V.  Clarkson 1  Bibb  277 144 

Scott  V.  Dow 2  Gr.  350 228 

Scott  V.  Lalor 3  C.  E.  Gr.  301 510 


INDEX    TO  CASES    CITED.                               XXXVll 

Scudder  v.  Trenton  Del.  Falls  Co Sax.  695 287 

Sea  Insurance  Co.  v.  Stebbins 8  Paige  565 373 

Search  V.  Search 11  C.  E.  Gr.  110 343 

Seiam  v.  Williams 4  McLean  51 362 

Seeley  V.  Price 1  Hal.  Ch.  231 96 

Selah  V.  Selah 8  C.  E.  Gr.  185...., 453,  474 

Sellon  V.  Lewen 3  P.  Wms.  239 103 

Seton  V.  Slale 7  Ves.  265 253 

Seymour  v.  Long  Dock  Co 2  C.  E.  Gr.  169 

94,  133,  134,  176,  343,  502 

Shaftoe  v.  Shaftoe , 7  Ves.  172 309 

Shann  v.  Jones ..     4  C.  E.  Gr.  251 253 

Shannon  v.  Marcelis Sax.  413 369 

Shedd  V.Garfield 5  Vt.  39 10 

Sheldon  v.  Hoy 11  How.  Pr.  11 6 

Sheppard's  Ex'r  V.  Starke 3  Munf.  29 11 

Sheppard  v.  Fenton 4  Halst.  8 191 

Sheppard  V.  Nixon 16  Stew.  Eq.  627 615 

Sheppard  V.  Osborne 1  Hogan  126 136 

Shewell  v.  Jones 2  Sim.  &  Stu.  170;  3  Euss.  522....  648 

Shields  v.  Barrow 17  How.  145 510 

Shields  v.  Hunt 12  Stew.  Eq.  485 623 

Shields  v.  Lozear 7  C.  E.  Gr.  447  ;  5  Vr.  496,  530... 

133,345,  346 

Shipman  v.  Cook... 1  C.  E.  Gr.  251 118 

Shultz  V.Sanders. 11  Stew.  Eq.  154 240 

Shute  V.  Gustin October,  1822  362 

Sickles  V.  Carson 11  C.  E.  Gr.  442 475 

Sieveking  v.  Behrens 2  My).  &  C.  581 287,  485 

Silver  v.  Campbell 10  C.  E.  Gr.  465 232,  253 

Sinnickson  V.  Gale 1  Harr.  21 234 

Sire  V.  Wightman 10  C.  E.  Gr.  102 351 

Sisson  V.  Donnelly 7  Vr.  432 635 

Skillman  V.  Holcomb 1  Beas  131 213 

Slockbower  v.  Kanouse 5  Dick.  Ch.  Eep.  481 403 

Small  V.  Atwood 2  Y.  &  Jer.  512 135 

Smallwood  v.  Levin 2  Beas.  123 106 

Smith,  Adm'r,  v.  Axtell Sax.  497...... 8 

Smith  V.  Ballard 2  Hayw.  289 491 

Smith  V.  Barnes Dick.  67 101 

Smith  V.  Bayright .' 7  Stew.  Eq.  424 262 

Smith  V.  Burnhara 2  Sumner  612 7 

Smith  V.  Clarke 4  Paige  368 9 

Smith  V.  Frenche 1  Stew.  Eq.  115 110,  413 

Smith  V.  Gaines 12  Stew.  Eq.  545 402 

Smith  V.  Howell 3  Stock.  349 232 

Smith,  In  re 23  Beav.  284 276 


XXXviil  INDEX   TO   CASES   CITED. 

Smith  V.  Kuhl 11  C.  E.  Gr.  97 307 

Smith  V.Parke 2  Paige  298 19 

Smith  V.Smith 2  Blackf.  232 140 

Smith  V.Smith 10  Paige  475 415 

Snover  v.  Snover 2  Beas.  261 469,  473 

Sobernheimer  V.  Wheeler 18  Stew.  Eq.  619 305 

Society,  &c ,  V.  Butler 1  Beas.  499 287 

Southern  Nat.  Bank  v.  Darling 4  Dick.  Ch.  Eep.  398 70 

Southwick's  Case 2  Ves.,  Sr.,  401 640 

Sparke  V.  Montriou 1  You.  &  C.  (Exch.)  103 79 

Spear  V.  Given 9  Paige  362 497 

Speer  v.  Speer 1  McCart.  240 404 

Spinning  V.  Spinning 16  Stew.  Eq.  215 625 

Spring  V.  Fish 6  C.  E.  Gr.  175 351 

Staftbrd  v.  Brown 4  Paige  88 9,  120 

Staflbrd  V.  Howlett 1  Paige  200 502 

Stafford  v.  Williams 12  Barb.  240 239 

Stanhope  v.  Eoberts 2  Atk.  214 78 

Stanley  V.  Hume lHoganl2... 70 

Stanley  v.  Robertson 1  Russ.  &  M.  527 106 

Stark  V.  Hunton 2  Gr.  Ch.  300 359 

State  Bank  v.  Receivers,  &c 2  Gr.  Ch.  266 530 

State  V.  Fisler 1  Halst.  305 48 

State  V.Green 3  Gr.  88 279 

State  V.  Gulick Harr.  437 43 

State  V.  Rickey 3  Halst.  50 402 

State  V.  Trumbull 1  South.  130 157 

Steele,  In  re 4  C.  E.  Gr.  120 672 

Steele  V.  Lewis 1  Mon.  49 141 

Steele  v.  Steele 11  C.  E.  Gr.  85 452 

Stephenson  v.  Taverners 9  Gratt.  398 513 

Stern  V.  Ledden 4  Bibb  178 18 

Stevens  v.  Praed 2  Cox  374 178 

Stevens  V.  Stevens 1  McCart.  374 456 

Stevens  v.  Stevens 9  C.  E.  Gr.  77 510 

Stevens  v.  Vancleve 4  Wash.  C.  C.  262 232 

Stevenson  v.  Black Sax.  338 231,  331 

Stillwell  V.  McNeely 1  Gr.  Ch.  305 2 

Stimson  v.  Bacon 1  Stock.  144 291 

Stockton  v.  Dundee  Mfg.  Co 7  C.  E.  Gr.  56 345 

Stockton  V.  Stockton.., July,  1875 29 

Stokes  V.  Dee 2  Hogan  47 81 

Stokes  V.  Garr 2  Harr.  451 149 

Stone  V.  Stone 10  C.  E.  Gr.  445 21,  460,  461 

Stone  V.  Stone 1  Stew.  Eq.  409 26,  28,  460 

Stonington  Bank  v.  Davis 2  McCart.  30.. 356 

Stotesbury  v.  Vail 1  Beas.  394 113- 


INDEX   TO   CASES   CITED.  XXXIX 

Stoutenburgh  v.  Peck 3  Gr.  Cli.  446 305 

Stover  V.  Reading 2  Stew.  Eq.  153 5 

Stover  V.  Wood  11  C.  E.  Gr.  56 

Strange  v.  Harris 3  Bro.  C.  C.  365 137 

Strike  v.  McDonald 2  Harr.  &  Gill  191 527 

Striker  v.  Mott 2  Paige  387 405 

Sugar  Refining  Co.  v.  Jersey  City 11  C.  E.  Gr.  247 287 

Summers  v.  Murray 2  Edw.  Ch.  205 121 

Sutherland  v.  Rose 47  Barb.  145 378 

Swackhamer  v.  Kline 10  C.  E.  Gr.  503 187 

Swaine  v.  Perine 5  John.  Ch.  487 , 625 

Swallow  V.  Swallow 12  C.  E.  Gr.  278 184 

Swayze  V.  Swayze 1  Stock.  273 513,  521 

Swedesborough  Church  v.  Shivers 1  C.  E.  Gr.  453 94 

Sweet  V.  Parker 7  C.  E.  Gr.  453 114 

Swinfer  v.  Swinfer 3  Sim.  384 142 

Swope  V.  Ardery 5  Ind.  215 231 

Sydolph  V.  Monkston Dick.  609 120 

Symmes  v.  Strong 1  Stew.  Eq.  131 10,  114 

T. 

Talmage  v.  Pell 9  Paige  410 511 

Tantum  v.  Coleman 11  C.  E.  Gr.  128 3 

Tate  V.  Tate 11  C.  E.  Gr.  55 31,  460 

Tatham  v.  Wright 2  Russ.  &  M.  31 251 

Taylor  v.  Milner 10  Ves.  444 92 

Taylor  V.  Taylor 1  Stew.  Eq.  207 460 

Taylor  v.  Thomas 1  Gr.  Ch.  106 65 

Teifair  v.  Stead's  Ex'rs 2  Cranch  408 6 

Terhune  v.  Colton 1  Beas.  312 188 

Thatcher  v.  Lambert 5  Hare  228 114 

The  Bank  v.  Dugan 2  Bland  254 527 

The  People  V.  Brower 4  Paige  405 277 

Third  Ave.  Savings  Bank  v.  Diniock,     9  C.  E.  Gr.  26 106 

Thomas  v.  De  Baum 1  McCart.  37 202 

Thomas  v.  Dike 11  Vt.  273 4 

Thomas  v.  Thomas  Litt.  9 140 

Thompson's  Case 2  Gr.  Ch.  637 442 

Thompson  v.  Engle 3  Gr.  Ch.  271 615 

Thompson  v.  Fisler 6  Stew.  Eq.  480 528 

Thorne  v.  Mosher 5  C.  E.  Gr.  257 345 

Thornton  v.  Wilson 1  Hogan  20 71 

Tibbals  v.  Sargeant 1  McCart.  449 372 

Tichenor  v.  Dodd 3  Gr.  Ch.  454 378 

Tillotson  V.  Hargreaves 4  Madd.  172 73 

Tillou  V.  Britton 4  Halst.  120 , 345 

Tomkins  V.  Tomkiiis 3  Stock.  512 558 


xl  INDEX   TO   CASES   CITED. 

Tomlinson,  Ex  parte 1  Ves.  &  Bea.  58 643 

Tomlinson  v.  Sheppard 3  Hal.  Ch.  80 178 

Tompkins  v.  Tompkins 6  C.  E.  Gr.  338 351 

Took  V.  Hartley 2  Bro.  C.  C.  125;  Dick.  785 387 

Townsend  V.  Smith 1  Beas.  350 183,  188 

Townshend  v.  Simon 9  Vr.  239 231,  253 

Trades  Savings  Bank  v.  Freese 11  C.  E.  Gr.  453 331,  342 

Trask  v.  Stone 7  Mass.  241 4 

Travers  V.  Ross 1  McCart.  254 89 

Trenton  Banking  Co.  v.  Rossell 1  Gr.  Ch.  492,  511 249,  251 

Trenton  Banking  Co.  v.  Woodruff 1  Gr.  Ch.  118 245 

Trenton  Banking  Co.  v.  Woodruff  ...     2  Gr.  Ch.  210 373 

Trumbull  V.  Gibbons Oct.,  1819 114 

Tunnard  v.  Littell 8  C.  E.  Gr.  264 3 

Tyler  v.  Drayton 2  Sim.  &  Stii.  309 79 

Tyson  v.  Applegate 13  Stew.  Eq.  305 2,  332,  341 

U. 

Underbill  v.  Jackson  1  Barb.  Ch.  73 442,  444 

Tnited  States  Bank  v.  Yoorhees 1  McLean  221 239 

Updike  V.  Bartles 2  Beas.  231 214 

V. 

Vail  V.  Central  R.  R.  Co 8  C.  E.  Gr.  466 90 

Vail  V.  Jameson 14  Stew.  Eq.  649 530 

Vale  V.  Davenport 6  Ves.  615 239 

Van  Alst  V.  Hunter 5  Johns.  153 251 

Van  Arsdale  v.  Drake 2  Barb.  601 415 

Vanauken  In  re 2  Stew.  Eq.  186 639,  647,  649 

Van  Buskirk  v.  Hoboken  &  N.  Y.  R. 

R  Co 2  Vr.  368 191 

Vanderhaise  v.  Hughes 2  Beas.  244,  412 163,  377 

Vanderveer  v.  Holcomb 7  C.  E.  Gr.  558 131 

Vanderveer  v.  Holcomb 2  C.  E.  Gr.  87,  547 331,  341 

Vanderveer  V.  Holcomb 6  C.  E.  Gr.  105 510 

Vanderveer  v.  Stryker 4  Hal.  Ch.  175 513 

VanDeventer  v.  Stiger... 10  C.  E.  Gr.  224 362 

Vandevere  v.  Reading 1  Stock.  446 106 

Van  Doren  v.  Robinson 1  C.  E.  Gr,  256 341 

Van  Duyne  v.  Van  Duyne 1  C.  E.  Gr.  93 211 

Van  Epps  v.  Van  Deusen 4  Paige  64 141 

Van  Houten  v.  Van  Winkle 1  Dick.  Ch.  Rep.  380 93 

Van  Keuren  v.  McLaughlin 6  C.  E.  Gr.  163,  379 

133,  176,  341,  342 

Van  Meter  v.  Borden 10  C.  E  Gr.  414 202,  207 

Vann  v.  Barnett 2  Bro.  C.  C.  158 137 

Van  Ness  v.  Van  Ness 5  Stew.  Eq.  729 Iviii 


INDEX   TO  CASES   CITED.  xli 

Tan  Kensselaer  v.  Brice 4  Paige  174 121 

Van  Riper  v.  Berdan 2  Gr.  140 402 

Van  Syckel  v.  O'Hearn 5  Dick.  Ch.  Eep.  173 351 

Vaughan  v.  Fitzgerald 1  Sch.  &  Lef.  31G 494 

Vaughn  V.  Johnson 1  Stock.  173 114 

Vere  v.  Glynn Dick.  441 101 

Vermillyea  v.  Odell 4  Paige  121 135 

Verplanck  v.  Mercantile  Co 2  Paige  438 13 

Vigers  v.  Lord  Audley 9  Sim.  72 504 

Voorhees  v.  Melick..," 10  C.  E.  Gr.  523 135,  341 

Voorbees  V.  Eeford...  1  McCart.  155 521 

Voorhis  V.  Murphy 11  C.  E.  Gr.  434 351 

Vreeland  v.  Loubat 1  Gr.  Ch.  104 341 

Vreeland  v.  New  Jersey  Stone  Co 10  C.  E.  Gr.  140 105 

Vreeland  v.  Vreeland 3  C.  E.  Gr.  43 465 

Vroom  V.  Ditmas 4  Paige  526 378 

Vroom  V.  Marsh 2  Stew.  Eq.  15 465 

W. 

AVager,  In  re 6  Paige  11 645 

Wagner  v.  Blanchet 12  C.  E.  Gr.  357... 19 

Wakefield  v.  Childs 1  Fonbl 625 

Wagstaffv.  Bryan 1  Russ.  &  Mylne  28,  30 61,  121 

Wainwright  v.  Rowland 25  Mo.  53 418 

Waldron  v.  Letson 2  McCart.  126 219,  334 

Wales,   Princess  of,  t.  The   Earl   of 

Liverpool 1  Swanst.  114 75 

Walker  V.  Easterly 6  Ves.  612 69 

Walker  v.  Hill's  Ex'rs 6  C.  E.  Gr.  191 ;  7  Id.  513 

11,  114,240,  519 

Wallace  v.  Wallace July,  1828 122 

W^alling  V.  Walling 1  C.  E.  Gr.  389 465,  467 

Wallis  V.Atkinson 1  Fowler's  Ex.  Pr.  449 61 

Wain  V.  Meirs 12  C.  E.  Gr.  77,  351....110,  413,  416,  418 

Walton  V.  Coulson 1  McLean  120 355 

Walton  V.  Law 6  Ves.  150 177 

Walton  V.  Van  Mater April,  1823 174 

Ward's  Ex'rs  V.  Hayne IOC.  E.  Gr.  397 369 

Warrington  v.  Wheatstone Jac.  205 485 

Washington  Life  Ins.  Co.  v,  Paterson 

Mfg.  Co 10  C.  E.  Gr.  160 5 

Waterman  v.  Merrill 4  Vr.  378 228 

Watson  v.  Renwick 4  Johns.  Ch.  383 74,  79 

Watis  V.Kelly 6  W.  R.  206 2 

Wauters  v.  Van  Vorst 1  Stew.  Eq.  103 314 

"Way  V.  Bragaw 1  C.  E.  Gr.  213 93,  98,  177,  279 

Webb  V.  Pell 1  Paige  564 507,  508 


xlii  INDEX   TO   CASES   CITED. 

Weber  v.  Weitling 3  C.  E.  Gr.  39 64,  6& 

Webster  V.  Threlfall 1  Sim.  &  Stu.  135 136 

Weis,  In  re 1  V.  E.  Gr.  318 642,  657,  658,  859 

Weissenborn  v.  Seighortner 6  C.  E.  Gr.  482 188 

Welford  V.  Stainthorpe 2  Beav.  587 75 

Wells  V.  Bridgeport  Co 30  Conn.  316 8 

Welsh  V.  Bayard.... 6  C.  E.  Gr.  186 232 

West  V.  Paige 1  Stock.  203 118,  142 

West  V.Smith 1  Gr.  Ch.  309 20 

Westerfield  v.  Bried 11  C.  E.  Gr.  357 113 

Weston  V.  Foster , 7  Mete.  297 405 

Wetherell  v.  Collins 3  Madd.  255 378 

Wetmore  v.  Dyer 1  Gr.  Ch.  386 28 

Wheeler  v.  Kirtland 8  C.  E.  Gr.  13  ;  9  Id.  552 636 

Whipple  V.  Farrar 3  Mich.  (Gibbs)  436 239 

White  V.  Davis 3  Dick.  Ch.  Kep.  22  12,  344 

White  V.  Dummer 1  Gr.  Ch.  527 96 

White  v.Zust 1  Stew.  Eq.  107 213 

Whitenack,  Ex  parte 2  Gr.  Ch.  252 647 

Whhing  V.  Bank  of  U.  S 13  Peters  15 179 

Whitlock  V.  Greacen 3  Dick.  Ch.  Rep.  359 615,  618 

Whitlock  V.  Marriot 2  Rep.  in  Ch.  386 L5 

Whitmarsh  v.  Campbell 1  Paige  645 61,  121 

Whitney  v.  Mayor,  &c 1  Paige  548 143 

Whitney  v.  Robbins 2  C.  E.  Gr.  360 497 

Whyte  V.  Arthur 2  C.  E.  Gr.  521..". 511 

Wilder  v.Keeler 3  Paige  164 528 

Wilkins  V.  Kirkbride 12  C.  E.  Gr.  93 107,  342 

Wilkinson  v.  Bauerle 14  Stew.  Eq.  635 530 

Wilkinson  v.  Belsher 2  Bro.  C.  R.  272 72 

Williams  v.  Carle 2  Stock.  543 511 

Williams  v.  Davies 1  Sim.  &  Stu.  426 126 

Williams  v.  Mellish 1  Yern.  117 508 

Williams  v.  Michenor 3  Stock.  520 521 

Williams  v.  Thompson  2  Bro.  C.  C.  280 35 

Williams  v.  Williams 2  Gr.  Ch.  130 14 

Williamson  v.  Carroll 1  Harr.  217.. 88,  113 

Williamson  V.N.  J. Southern R.R. Co..     1  Stew.  Eq.  345 331 

Williamson  v.  Probasco 4  Hal.  Ch.  571 362 

Williamson  v.  Sykes 2  Beas.  182 35 

Williamson  V.  Wilson 1  Bland  434 527 

Willink  V.  Morris  Canal  Co 3  Gr.  Ch.  377,  397 2,  332,  343 

Willisv.Evans 2  Ball  &  Beatty  229 68 

Wilson  V.  Bellows 3  Stew.  Eq.  282 93 

Wilson  V.  Brown 2  Beas.  277 Ixv 

Wilson  v.  Cornell 1  South.  117 148 

Wilson  V.  E.  R.  R.  Co 62  Mo.  112 439 


INDEX   TO   CASES   CITED.  xliii 

Wilson  V.  Hill.. 1  Dick.  Ch.  Rep.  .367 93 

Wilson  V.  King 12  C.  E.  Gr.  374 636 

AVilson  V.  Marsh 2  Beas.  289 359 

Winans  v.  Walworth July,  1823 142 

Winchelsea  v.  Garetty 1  Myl.  &  Keen  253 187 

Windsor  v.  Windsor 2  Dick.  707 12 

Winnipiseogee  Lake  Co.  V.  Worster...     9  Fost.  443 2 

Wiuship  V.  Winsbip 1  C.  E.  Gr.  107 452 

Wintermute  v.  Snyder 2  Gr.  Ch.  489 635,  636 

Winthrop  V.  Eay Dick.  282 69 

Wood  V.  Downes 1  Ves.  &  Bea.  49 138 

Wood  V.  Griffith 1  Mer.  35 184 

Wood  V.  Lyne 4  De  G.  &  Sm.  16 484 

Wood  V.  Mann... 3  Sumn.  C.  C.  318 253 

Wood  V.  Midgely 5  De  G.,  M.  &  G.  41 93 

Woodcock  V.  Bennett 1  Cowen  734 10 

Woodcock  V.  Eailwav  Co 10  Hare  Ap.  54;    17  Jur.  33,  Y. 

C.  K 276 

Woodhull  V.  Neafie 1  Gr.  Ch.  409 253 

Woodroffe  v.  Daniel 10  Sim.  243 120 

Woodruff  V.  Depue 1  McCart.  168 ,. 345 

Woodward  V.  Ast ley Bunbury  304 61 

Wortman  v.  Skinner 1  Beas.  387 231 

Wragg,  Ex  parte..  5  Ves.  450 645 

Wright  V.  Dame 22  Pick.  59 9 

Wright  V.  De  Klyne 1  Pet.  C.  C.  199 143 

Wright  V.  McKean 2  Beas.  259 348 

Wright  V.  Tatham 2  Sim.  459 142,  494 

Wright  V.  Wright 4Hal.  Ch.  143 12,     15 

Wroe  V.  Harris 2  Wash.  (Va.)  126 213 

Wyckoff  V.  Cochran 3  Gr.  Ch.  420 xvi 

Wvckoff  V.  Wyckoff 1  C.  E.  Gr.  401 603 

Y. 

Yarnall  v.  Eose 2  Keen  326 103 

Yarnan  V.  Marshall Dick.  77 19 

Yauger  v.  Skinner 1  McCart.  395 8 

Young  V.  Clarksville  Co 12  C.  E.  Gr.  67 114 

Young  V.  Cooper 3  Johns.  Ch.  295 446 

Young  V.Trier 1  Stock.  465 521 

Young  V.  Young 2  C.  E.  Gr.  161 139 

Youngblood  v.  Schamp 2  McCart.  42 16,  17,  278,  287,  288 

Youle  V.  Eichards Sax.  534,  538  297,  377 

Yule  V.  Yule 2  Stock.  138 14,  309,  469 

Z. 

Zingsern  v.  Kidd 2  Stew.  Kq.  516 334 


ADDENDA   ET   CORRIGENDA. 


Page  29,  note  (6),  for  "chap.  CLVIII."  read  "chap.  CXLII." 

Page  95,  note,  for  Rev.,  "Chancery"  "^  3,"  read  "  §  30." 

Page  96,  note,  for  Eev.,  "Chancery;'  "  §  3,"  read  "  ^  31." 

Page  127,  note  (a),  strike  out  "as  in  note  (a)." 

Page  134,  note  («),  second  cohimn,  line  8,  for  "fifty-sixth"  read  "sixty-sixth." 

Page  145,  note,  second  column,  line  19,  after  "39"  insert  "See  amendment  to 

§  38,  P.  L.,  1893,  p.  185." 
Page  159,  after  title  of  notice,  insert  (c),  the  first  note  on  same  page,  second 

column,  should  be  headed  "  (c)." 
Page  206,  note  (a),  for  "Rule  140"  read  "Eule  141." 
Page  235,  end  of  note  (a),  for  "  Rule  208  "  read  "  Rule  205." 
Page  241,  note,  second  column,  line  31,  after  "chancery,"  read  "or  sheriff'." 
Page  241,  note,  second  column,  last  line,  after  "chancery"  read  ''or  the  then 

sheriflV 
Page  247,  form,  j^assim,  instead  of  "  trespass  on  the  case,"  rea,d  "  tort." 
Page  259,  form,  instead  of  "  trespass  on  the  case  upon  promises,"  read  "  con- 
tract." 
Page  327,  note  at  bottom,  add  "See  Rev.  Sup.,  ^Chancery,'  ?.  6." 
Page  640,  note,  second  column,  line  11,  instead  of  "  1893,"  read  "  1890." 


Note. — The  reader  is  particularly  requested  to  introduce  the  above  correc- 
tions into  their  proper  places  in  the  work. 


RULES 

OF   THE 

Court  of  Chancery,  Court  of  Errors  and  Appeals, 
Prerogative  Court  and  Orphans'  Courts 

OF 

NEW    JERSEY. 


RULES 


Court  of  Chancery 


NEW   JERSEY. 


Note. — The  amendments  to  the  rules  are  enclosed  in  [brackets].    The  dates 
on  the  margin  indicate  the  time  of  promulgation  or  amendment  of  the  rule. 


I.— OF   TERMS   OF   COURT.(a) 

1.  Each  regular  term  of  the  court  shall  continue,  for  the  Juiyist, 
setting  down  of  causes  and  arguments,  until  the  twentieth  day 
thereof,  and  for  all  other  purposes  until  the  next  regular  term ; 

but  no  arguments  or  contested  motions  shall  be  heard  between 
the  sixteenth  day  of  July  and  the  first  day  of  September,  except 
in  injunction  cases,  unless  by  consent  and  the  special  order  of 
the  Chancellor. 

2.  No  day  shall  be  assigned  by  the  court  for  the  final  hearing  1874. 
of  any  cause  on  the  list  until  after  the  evidence  shall  have  been 
closed,  unless  the  cause  be  set  down  for  hearing  on  bill  and 
answer. 


1817. 


3.  All  causes,  including  pleas  and  demurrers,  shall  be  set  Sept.  8th, 
down  for  hearing  for  the  first  day  of  the  term,  provided  there  is 
time  sufficient  to  give  the  notice  required  ;  if  not  time,  then  at  a 

fa)    Three   stated   terms   are   lield  Trenton,  and  such   special  terms,  at 

annually,  viz.,  on  the  first  Tuesday  of  the  same  or  any  other  place,  as  the 

February,  the  third  Tuesday  of  May,  Chancellor  may  appoint.  Eev.,  ^'Chan- 

and  the  third  Tuesday  of  October,  at  cen/,"  ?  1. 


xlviii  RULES   OF    THE 

subsequent  day  in  the  term,  not  later  than  the  twentieth  day,^ 
and  shall  have  priority  according  to  the  date  of  issue ;  and  the 
party  setting  down  a  cause  for  hearing,  or  his  solicitor,  shall,  at 
least  six  days  before  the  first  day  of  the  term  for  which  the 
cause  is  noticed,  furnish  the  clerk  with  a  note  of  the  time  issue 
was  joined,  which  shall  be  entered  on  the  calendar;  and  in 
default  thereof,  the  cause  set  down  without  such  note  shall  lose 
its  priority. 

II.— OF  MOTION-DAYS. 

Amended  4.  Every  Monday  shall  be  a  motion-day  at  the  chancery 
1893.  '  chambers  in  Camden  and  Jersey  City,  and  every  Tuesday  shall 
be  a  motion-day  at  the  state- house,  in  Trenton,  and  the  chan- 
cery chambers  in  Newark,  except  the  third  and  fifth  Mondays 
and  Tuesdays  in  July,  and  the  Mondays  and  Tuesdays  in 
August,  save  the  second  Tuesday  in  that  month,  at  Trenton,  the 
second  Monday  at  Jersey  City,  the  third  Tuesday  at  Newark 
and  the  third  Monday  at  Camden.  When  a  regular  motion- day 
shall  fall  upon  a  legal  holiday,(a)  the  day  following  shall  be 
the  motion-day.  Motions  may  be  heard  on  any  of  the  days  desig- 
nated, by  a  Vice  Chancellor,  without  previous  special  reference 
of  the  matter  involved  therein  to  him.  [Notices  of  motions 
shall  designate  the  place  of  hearing,  as  "  The  Chancery  Cham- 
bers at "  Jersey  City,  Newark  or  Camden,  as  the  case  may  be ; 
or,  if  the  hearing  is  to  be  at  Trenton,  the  designation  shall  be 
Dec.3ist,  «The  State  House  at  Trenton  ; "  and  they  shall  also  state  that 
the  motion  will  be  made  before  "  the  Chancellor,"  unless  the 
case  in  which  the  motion  is  to  be  made  shall  theretofore  have 
been  speciaJly  referred  to  a  Vice  Chancellor,  in  which  case  the 
notice  shall  state  that  the  motion  will  be  made  before  the  Vice 
Chancellor  to  whom  such  reference  shall  have  been  made.] 

(a)    The    first    day    of    January,  general    election    shall    be   held   for 

twenty-second  day  of  February,  thir-  members  of  assembly,  shall  be  a  legal 

tieth  day  of  May,  fourth  day  of  July,  holiday,  and  no  court  shall  be  held, 

first  Monday  in  September,  Thanks-  nor  any  business  done  upon  said  days, 

giving  Day,  twenly-fifth  day  of  De-  Eev.,  -p.  481,  ^   1;    Pamph.  L.,  1887, 

cember,  and  all  days  upon  which  any  chap.  CXIV. 


COUET   OF  CHA.NCERY.  xlix 

5.  All  motions  in  causes  not  referred  to  a  Vice  Chancellor  Junei9th, 
shall  be  made  on  such  motion-days,  and  notice  of  a  motion  at 
any  other  time  shall  be  of  no  avail,  unless  specially  directed  by 
the   Chancellor,  and  unless  the  fact  of  such  special  direction 
having  been  made,  be  expressed  in  the  notice. 


III.— OF  THE  ORDER  OF  BUSINESS. 

6.  On  the  morning  of  the  first  day  of  every  stated  term,  and  Sept.  sth, 
on  regular  motion-days,  motions  and  petitions  shall  have  prefer- 
ence of  all  causes  set  down  for  hearing  or  argument,  [the  unliti-  M^y  i^^f 
gated  motions  and  petitions  having  preference  over  those  which  ^^^^• 
are  litigated,  and  moving  counsel  being  recognized  in  order  of 
seniority.] 

7.  On  all  hearings  and  arguments  before  the  court,  after  read-  ^^^.y^ist, 
ing  the  pleadings,  one  of  the  counsel  for  the  complainant,  or 

party  holding  the  affirmative,  and  having  the  right  of  opening, 
shall  open  the  cause  or  matter  in  question  ;  then  two  counsel  for 
the  adverse  party  may  be  heard  in  answer,  after  which  one  coun- 
sel only  for  the  party  having  the  opening  may  be  heard  in  reply ; 
but  in  case  there  be  several  defendants,  who  have  separate  and 
distinct  interests,  and  different  counsel  concerned  for  them,  then 
the  counsel  for  the  respective  defendants  shall  be  heard  in  such 
order  as  the  court  may  direct,  but  in  no  case  shall  more  than  two 
counsel  be  heard  for  one  defendant;  and  if  more  than  two 
counsel  are  heard  in  answer  for  the  defendants,  in  that  case  two 
counsel  may  be  heard  in  reply. 

8.  The  party  who  sets  down  any  cause,  plea  or  demurrer  for  Sept.  stb, 
hearing  or  argument,  shall  deliver  to  the  Chancellor,  before  the 
commencement  of  the  hearing  or  argument,  an  abbreviation  of 

the  pleadings,  or  a  state  of  the  case  as  contained  in  the  plead- 
ings; and  each  party  shall  also  furnish  him  with  a  concise  state- 
ment of  the  material  points  of  the  case  on  which  he  intends  to 
rely,  [under  each  of  which  the  authorities  relied  upon  to  sustain  ^/a'^i.^ih^ 
the  point,  shall  be  cited.]  i**^^- 

4 


1  RULES   OF   THE 

April,  1841.  9^  ;f^o  causes  will  be  heard,  except  such  as  are  set  down  at  a 
regular  term,  unless  ordered  by  the  Chancellor,  upon  consent  of 
parties. 

1853.  •jQ^  Every  cause  shall  be  noticed  for  hearing  at  the  next  term 

after  the  evidence  therein  is  closed,  provided  there  shall  be  suffi- 
cient time  to  notice  it  at  or  in  such  term ;  and  no  cause  shall  be 
set  down  for  hearing  on  any  day  in  term  after  the  twentieth  day. 


IV.— OF  SETTING  DOWN  CAUSES,  &c. 

May 21st,  jl.  Noticcs  of  bringing  causes  to  a  hearing,  including  the 

bringing  on  the  argument  of  a  plea,  demurrer  and  of  exceptions 
to  a  master's  report,  shall  be  served  at  least  fifteen  days  before 

May  20tif  ^^^^  intended  hearing  or  argument ;  [and  the  order  setting  down 
exceptions  to  a  master's  report  for  argument,  must  be  both  entered 
and  served  before  the  expiration  of  the  time  limited  by  the  rule 
nisi,  or  the  report  may  be  confirmed.(a)] 


1879, 


May  20th,  J2,  Exceptions  to  a  master's  report  may  be  set  down  to  be 

heard  at  any  day  in  the  term,  on  the  application  of  either  party; 
but  five  days'  notice  shall  be  given  of  such  application. 

''^^-  13.  Where  the  complainant  has  taken  issue  upon  a  plea,  by 

filing  a  replication  thereto,  either  party  may  enter  the  plea  for 
argument  at  the  next  or  any  subsequent  term. (6) 

(a)  Taylor  v.   Thomas,   1    Gr.   Ch.  a  report  is  a  sufficient,  and  the  usual 

106 ;  and  see  Morris  v.  Taylor,  8   (7  showing  cause  against   its   confirma- 

E.  Or.  135.     Notice  of  argument  left  tion.       Weber  v.    Weiiling,   3    C.  E. 

at  the  solicitor's   dwelling-house   in  Gr.  39. 

his  absence  is  good  service.     Taylor  (6)  If  complainant  deems  the  plea 

V.     Thomas,     supra.      Notice     good,  bad,  he  goes  to  hearing  upon  it;  if 

although    dated    on    Sunday.     Ibid.  he   deems  it  good,  but  not  true,  he 

Where   a   defendant    is    entitled   to  takes  issue  upon  it  and  proceeds  as  in 

notice  of  proceedings  before  a  master  case  of  an  answer.     Davison's  Ex'rs  v. 

under  an  order  of  reference,  a  rule  Johnson,  1  C.  E.  Gr.  112.     As  to  bur- 

nisi  to  confirm  the  report  should  be  den  of  proof  in  case  of  a  plea,  see 

taken.     Miller's  Adm'x  v.  Miller,  11  Swayze  v.  Swayze,  10  Stew.  Eq.  186. 
C.  E.  Gr.  423.     Filing  exceptions  to 


COURT  OF  CHANCERY.  li 

14.  (Abrogated.)     For   practice   in   setting   down   suits  for 
-divorce,  for  hearing,  see  "  In  Suits  for  Divorce,"  infra. 

1 5.  When  a  replication  has  been  filed,  and  the  taking  of  proofs  isss. 
begun  bj  either  party,  the  complainant  shall  not  be  at  liberty  to 
dismiss  the  bill,  except  upon  special  motion  and  notice  to  the 
defendant ;  and  in  any  such  cause,  if  the  complainant  shall  fail, 
within  ten  days  after  the  expiration  of  the  time  to  take  testimony, 

to  notice  the  cause  for  argument,  the  defendant  shall  be  entitled 
of  course  to  an  order  directing  the  complainant  to  show  cause 
why  the  defendant  should  not  be  permitted  to  notice  the  cause 
for  argument,  and  bring  on  the  hearing  thereof  at  the  next 
stated  term ;  and  if  cause  be  not  shown  to  the  contrary,  the 
defendant  may  be  permitted  to  give  notice,  and  bring  on  the 
hearing  of  the  cause. 

16.  In  all  suits  where  the  equities  between  the  parties  shall  May  20th, 
have  been  settled  by  an  interlocutory  decree,  the  cause  may  be 

at  once  set  down  for  final  hearing,  and  a  final  decree  may  be 
entered  at  the  same  term  after  such  hearing. 

y.— OF   CASES   SUBMITTED. 

17.  Where  cases  are  submitted  to  the  Chancellor  without 
argument,  such  submission  shall  be  made  by  agreement  in  writ-  ^v^i,  i84i. 
ing,  signed  by  the  solicitors  of  the  respective  parties,  and  shall 

be  accompanied  by  briefs  or  notes  of  the  points  and  cases  upon 
which  the  said  parties  respectively  rely. 

VI.— OF  RULES  AND  ORDERS. 

18.  Rules  and  orders  to  expedite  a  cause  may  be  taken  as 
well  in  vacation  as  in  term-time.(a) 

19.  Every  rule  for  a  reference  to  a  master  of  exceptions  to  a  sept.  8th, 

.  .  1817. 

biil,  answer  or  to  interrogatories  to  a  complainant  to  be  answered ; 

(a)  The  mere  filing  of  a  rei^lication       Stock.  203;  see  Stover  v.  Wood,  11  C. 
is  not  a  compliance  witli  an  order  to       E.  Gr.  56. 
speed  the  cause.     West  v.  Paige,  1 


Hi 


EULES   OF   THE 


every  rule  for  setting  down  for  argument  a  plea,  demurrer  or 
exceptions  to  a  master's  report  or  a  cause  for  hearing;  every 
rule  to  confirm  a  master's  report  nisi  or  for  an  injunction,  where 
a  master  shall  report  that  it  is  proper  for  an  injunction  to  issue, 
and  every  rule  to  which  a  party  would,  according  to  the  practice 
of  this  court,  be  entitled  of  course  without  showing  special 
cause,  shall  be  denominated  a  common  rule,  and  every  other  rule 
shall  be  denominated  a  special  rule ;  all  common  rules,  and  all 
rules,  whether  common  or  special,  by  consent  of  parties  (such 
consent  being  in  writing,  and  signed  by  the  parties  or  their 
solicitor  or  counsel,  and  filed),  may  be  entered,  either  in  term- 
time  or  vacation,  with  the  clerk  of  the  court,  in  a  book  to  be  by 
him  procured  and  kept  for  that  purpose ;  but  every  such  rule 
shall  be  considered  as  entered  at  the  peril  of  the  party  at  whose 
instance  it  is  entered,  and  the  day  of  entering  thereof  shall  be 
noted  in  the  said  book. 


Sept.  8th, 
1817. 

Amended 
1868. 


20.  [All  notices  of  motions,  all  notices  of  taking  testimony,]  all 
summonses  to  attend  a  master,  orders  to  confirm  reports  unless 
good  cause  shown,  and  all  orders  nisi,  shall  be  served  on  the 
solicitor  of  the  adverse  party,  if  a  solicitor  be  concerned  for  him ; 
but  if  no  solicitor  be  concerned  for  him,  the  service  may  be  on 
the  party,  or  left  at  his  usual  place  of  residence,  or,  if  not  resi- 
dent in  this  state,  by  setting  up  the  same  in  the  office  of  the 
clerk  of  this  court. 


Sept.  8th, 
1817. 


Amended 
Dec.  23d, 
1871. 


21.  In  all  suits  for  the  foreclosure  or  satisfaction  of  a  mort- 
gage,* when  the  complainant's  bill  shall  be  ordered  to  be  taken 
as  confessed,  or  the  defendant  shall  make  default  at  the  hearing, 
and  the  whole  amount  of  the  debt  intended  to  be  secured  by  the 
mortgage  shall  have  become  due,  no  order  of  reference  to  a  mas- 
ter to  ascertain  and  report  the  sum  due  to  the  complainant  shall 
be  entered  without  the  special  order  of  the  court ;  but  a  report 
by  a  master  being  made  of  the  amount  due  upon  the  mortgage, 
the  same,  if  no  cause  to  the  contrary  be  shown,  shall  be  filed  of 
course,  and  without  any  motion  or  rule  for  that  purpose  or  for 
confirmation,  and  a  decree  made  accordingly. 


*The  words  "  where  there  are  no  defendants  claiming  to  be  encumbrancers' 
were  omitted  by  the  amendment. 


COURT   OF   CHANCERY.  liil 

22.  In  cas38  where  the  complainant's  bill  shall  be  ordered  to  May  21st, 
be  taken  p^o  confesso  against  a  defendant,  [where  there  are  no  ^™®2ot1f 
infant  defendants,]  and  there  shall  be  a  reference  to  a  master  i^"^- 
ordered  in  the  cause,  the  complainant  may  proceed  before  the 
master  without  notice  thereof  to  such  defendant,  and  it  shall  not 

be  necessary,  upon  the  coming  in  of  the  master's  report,  to  enter 
a  rule  to  confirm  the  same  nisi,  or  to  set  the  cause  down  prepara- 
tory to  further  directions,  or  to  a  final  decree  against  such  defend- 
ant ;  [but  the  complainant  shall,  without  further  notice,  be  enti- 
tled to  a  final  decree.] 

23.  In  all  cases  where  the  complainant's  bill  shall  be  taken  Apru,  isii. 
pro  confesso  against  the  mortgagor,  and  other  defendants  claim- 
ing to  be  encumbrancers  file  their  answer  or  answers  setting  up 

said  encumbrances,  if  the  order  of  priority  shall  not  appear,  upon 
the  face  of  the  pleadings,  to  be  disputed  by  the  parties,  either 
complainant  or  defendant,  and  the  amounts  respectively  claimed 
as  due  do  not  appear  to  be  denied,  and  a  report  be  made  upon 
an  order  of  reference  to  a  master,  it  shall  not  be  necessary  to 
enter  a  rule  nisi  to  confirm  said  report,  or  to  set  the  cause  down 
for  hearing  on  the  same ;  [but  if  no  exceptions  to  said  report  be  Amended 
filed  within(a)  four  days  after  the  filing  of  said  report,  the  com- 
plainant shall,  without  further  notice,  be  entitled  to  a  final 
decree.] 

24.  Where  the  bill  in  a  foreclosure  suit  shall  be  ordered  to  be  June  19, 
taken  as  confessed  against  a  defendant,  no  report  or  decree  shall 

be  made  by  which  his  rights  or  claims  are  postponed  to  those  of 
any  other  defendant,  unless  the  priority  of  the  rights  or  claims 
of  such  other  defendant,  and  the  facts  upon  which  it  depends, 
are  distinctly  set  forth  in  the  bill;  and  any  controversies 
between  such  defendants  may  be  settled  upon  application  for  the 
surplus  moneys. (6) 

(a)  When  any  matter  of  proceed-  ported  the  order  of  priority  of  several 
ing  or  practice  is  required  by  statute  mortgages,  if  the  Chancellor,  on  ex- 
or  rule  to  be  within  a  certain  number  ceptions,  changes  tlie  order  of  prior- 
of  days,  the  first  day  is  excluded.  ity,  a  final  decree  may  be  taken  at 
Thome  v.  Mosher,  5  C.  E,  Gr.  257.  once    without    a    second     reference. 

(b)  See  Mul/ord  v.  Williams,  4  Hal.  Chance  v.  Teeplc,  3  Gr.  Ch.  173. 
Ch.  536.     Where  the  master  lias  re- 


liv 


RULES   OF   THE 


May  21st, 
1822. 


25.  Orders  nisi,  when  necessary  to  confirm  reports  of  masters^ 
need  not  be  served  upon  a  defendant  who  has  been  notified  to 
attend  the  master  respecting  the  matter  referred,  and  has  refused 
or  neglected  to  attend,  but  shall  become  absolute  of  course  as  to 
such  defendant,  unless  cause  be  shown  to  the  contrary. 


May  21st, 
1822. 


26.  In  cases  where  the  court  shall  order  the  complainant  to 
produce  documents  and  depositions,  exhibits  or  other  evidence, 
to  substantiate  and  prove  the  allegations  in  his  bill,  the  proceed- 
ings subsequent  to  the  said  order  may  be  considered  as  ex  parte, 
and  it  shall  not  be  necessary  for  the  complainant  to  give  notice 
thereof  to  the  defendant. 


Amended 
1868, 


April,  1841.  27,  Where  a  complainant  omits  to  take  a  decree  pro  eonfesso, 
[within  four  months]  after  the  time  when  he  is  entitled  to  it 
against  a  defendant  or  defendants,  he  shall  not  thereafter  move 
such  decree  until  he  has  first  taken  and  served  an  order  on  the 
defendant  or  defendants,  if  in  this  state,  to  file  their  answer  or 
answers  at  such  short  day  as  the  court  may  appoint. 


Amended 
1868. 


April,  1841.  28.  When  the  complainant,  in  any  bill  filed  to  foreclose  a 
mortgage,  makes  prior  or  subsequent  encumbrancers  parties  to 
said  bill,  and  they  come  in  and  answer,  and  the  complainant 
then  [for  four  months]  neglects  or  refuses  to  proceed,  the  said 
defendants,  or  any  of  them,  may  take  an  order  upon  the  com- 
plainant to  show  cause  at  any  time,  [on  ten  days'  notice,]  why 
the  said  defendant  or  defendants  shall  not  be  allowed  to  proceed 
with  the  said  cause  to  decree  and  execution  in  his  name ;  and 
unless  good  cause  be  shown  to  the  contrary,  an  order  may  be 
made  that  the  said  defendant  or  defendants  shall  be  allowed  so  to 
proceed  with  the  suit,  and  the  complainant  shall  not  be  allowed 
his  costs.(a) 


(a)  A  defendant  who  has  answered 
will  be  allowed  to  proceed  with  the 
suit,  although  the  complainant's  debt 
has  been  satisfied  and  he  has  agreed 
that  the  suit  shall   not   be    further 


prosecuted.  Youncj  v.  Young,  2  C.  E. 
Gr,  161.  Until  an  order  is  obtained, 
under  the  rule  the  defendant  cannot 
control  the  suit.  Coulston  v.  Coulstoriy 
10  Steiv.  Eq.  396. 


COURT   OF   CHANCERY.  Iv 

29.  Whenever,  in  a  suit  for  foreclosure  of  mortgage  or  for  il;!^"'^' 
partition,  the  answer  or  answers  shall  not  appear  to  set  up  any 
defence  or  to  present  any  question,  except  such  as  is  the  appro- 
priate subject  of  a  reference  to  a  master,  it  shall  not  be  necessary 

to  set  down  the  cause  for  hearing  in  order  to  obtain  a  reference, 
but  the  same  may  be  granted  on  motion  on  notice  to  the  solicitor 
or  solicitors  of  the  answering  defendant  or  defendants  (or  to  such 
defendant  or  defendants  if  appearing  in  person),  and  if  the  refer- 
ence be  ordered,  the  cause  may  proceed  under  it,  as  provided  by 
the  23d  rule. 

30.  If  a  suit  be  suffered  to  lie  without  substantial  prosecution  ^^^J^'"^'^' 
for  one  year,  it  shall  be  considered  as  abandoned,  and  the  bill  fgyf  ^nd*^ 
may  be  dismissed ;  five  days'  notice  shall  be  given  of  a  motion  J^^J  ^'^^^' 
for  that  purpose,  to  complainant  or  his  solicitor.(a) 

VII.— OF    INSPECTION    OF    BOOKS  AND 
PAPERS. 

31.  An  order  may  be  made  on  such  terms  as  may  be  imposed  igyj^*''^' 
by  the  Chancellor,  on  the  application  of  either  party  to  a  suit  in 

this  court,  for  an  inspection  and  copy,  or  permission  to  take  a 
copy  of  any  books,  papers  or  documents  relating  to  the  merits 
of  such  suit  or  of  the  defence  thereto ;  such  application,  of  which 
five  days'  notice  shall  be  given,  shall  be  by  petition  stating  the 
grounds  thereof,  and  verified  by  the  oath  of  the  party  or  his  or 
her  solicitor. 

32.  On  the  hearing  of  the  petition,  the  affidavit  of  the  oppo-  ^79.^°*"' 
site  party,  or  his  or  her  solicitor,  may  be  read  without  notice  of 

the  taking  of  the  same,  or  either  party  or  any  witness  may  be 
examined  on  such  hearing  in  relation  thereto ;  compliance  with 
the  order  provided  for  by  the  preceding  rule  may  be  compelled 
by  proceedings  as  for  a  contempt  of  this  court. 

(a)   This  rule  can   only  be   taken  taken  steps  which  amount  to  a  waiver 

advantage   of  by  application   to  the  of  the  benefit  of  the  rule.     Home  Ins. 

court  while  as  yet  the  cause  sleeps,  t'o.  v.  Howell,  9  C.  B.  Gr.. 238. 
or  at  least  before  the  defendant  has 


Ivi  RULES   OF   THE 


VIIL— OF    THE    CLERK. 

1853.  gg^  rpjjg  clerk  of  the  court  shall,  on  or  before  the  first  day  of 

January,  annually,  make  out  a  statement  of  the  funds  in  his 
hands,  where  the  same  are  deposited,  or  how  invested,  and  the 
times  when  the  same  were  received,  and  the  suit  or  matter  in 
which  the  same  were  paid  in,  in  order  that  the  Chancellor 
may  give  such  directions  concerning  the  same  as  he  may  deem 
advisable. 

im.  ^^'^^'  34.  All  moneys  paid  into  the  court  shall  be  deposited  forth- 
with in  the  "Trenton  Banking  Company,"  to  the  credit  of  the 
"Court  of  Chancery  of  the  State  of  New  Jersey,"  unless  other- 
wise specially  ordered  by  the  court ;  and  no  moneys  on  deposit 
under  this  rule  or  under  any  special  order  of  the  court  shall  be 
drawn,  except  by  a  draft  or  check  of  the  clerk,  countersigned  by 
M^^mhf  ^^^  Chancellor  [or  a  Vice  Chancellor] ;  and  whenever  any  money 
1893.  ig  paid  into  court,  it  shall  be  the  duty  of  the  clerk,  immediately 

upon  the  receipt  thereof,  to  give  notice  of  the  same  to  the 
Chancellor. 

Sept.  8th,  35^  The  clerk  of  this  court  shall  not  practice,  either  as  a 

solicitor  or  as  a  counselor,  in  the  court. 

f|Pt-  ^^^'  36.  No  file  of  the  court  shall  be  suffered  by  the  clerk  to  be 

taken  out  of  his  office,  without  the  order  of  the  court  for  that 
purpose  previously  obtained. 

May  21st,  3^^  rpj^^  clerk  shall,  in  the  copies  of  all  pleadings,  deposi- 

tions and  other  proceedings  filed  or  remaining  as  of  record  in 
his  office,  made  out  by  him  to  be  used  in  this  court,  leave  a 
margin  of  not  less  than  one  inch,  and  shall  distinctly  mark  and 
set  down  in  the  margin  the  numbers  of  the  pages  in  the  original 
pleadings,  depositions  and  other  proceedings,  so  that  the  copy 
may  correspond  with  the  original  in  the  paging  thereof. 

Sept.  8th,  3g^  rpj^g  solicitor,  in  every  case  in  this  court,  shall  be  answer- 

able to  the  officers  thereof  for  all  lawful  fees  which  shall  become 


COURT   OF   CHANCERY.  Ivii 

due  to  them  in  the  conducting  of  the  suit,  (execution  fees 
excepted,)  and  the  clerk  of  the  court  is  authorized  to  receive 
from  the  solicitor  all  such  fees  as  shall  become  due  to  the 
state ;  and,  in  order  to  enforce  the  punctual  payment  thereof  by 
the  solicitors,  the  clerk  shall  not  enter,  or  suffer  to  be  entered  or 
filed  in  his  office,  any  rule  or  rules,  paper  or  papers,  until  the 
solicitor  moving  the  same  shall  have  paid  up  all  fees  due  from 
him  to  the  state,  and  also  to  the  clerk  himself,  on  the  last 
day  of  the  term  next  preceding  the  term  in  which  the  motion  for 
such  entry  or  filing  is  made. 

39.  In  all  causes  where  there  are  proceedings  subsequent  to  a  Apro,  isii. 
decree  final,  which  shall  alter  or  vary  such  decree,  the  same  shall 

be  enrolled  by  the  clerk,  but  not  otherwise. 

40.  The  clerk  of  this  court  shall  keep  in  his  office  a  docket,  April,  isii. 
in  which  he  shall  enter  the  titles  of  all  suits  brought  in  the 

court,  and  a  memorandum  of  every  paper  filed  under  the  title 
of  the  suit,  with  the  time  of  filing  and  the  name  of  the  solicitor 
of  each  party,  and  also  an  alphabetical  index  to  the  same ;  and 
the  said  docket  shall  be,  at  all  proper  hours,  accessible  to  the  bar. 

41.  No  order  in   the  proceedings   for  foreclosure   and  sale  isss. 
under  mortgages  shall  be  filed  by  the  clerk  until  it  is  actually 
signed,  and  none  shall  be  filed  nunc  pro  tune  unless  specially 
directed  by  the  court ;  and  all  proceedings  under  an  order  not 
actually  signed,  shall  be  null  and  void. 

IX.~OF  MASTERS  AND  EXAMINERS. 

42.  Every  person  who  shall  be  appointed  a  master  or  exami-  Sept.  sth, 
ner  of  this  court  shall,  before  he  enters  upon  the  execution  of 

his  office,  subscribe  and  take,  before  the  Chancellor  or  clerk  [or  ^^^^^2^^ 
in  the  absence  of  the  Chancellor  or  clerk,  before  such  Vice  ^^^^^• 
Chancellor  or  advisory  master  as  shall  attend  at  the  clerk's  office 
for  that  purpose],  an  oath  or  affirmation,  faithfully,  impartially 
and  justly  to  perform  all  the  duties  of  the  office,  according  to  the 
best  of  his  abilities  and  understanding. 


Iviii  RULES   OF   THE 

Sept.  8th,  43.  When  a  matter  is  referred  to  a  master  of  the  court  to 

1817.  . 

examine  and  report  upon,  he  shall,  if  notice  be  necessary,  assign 
a  day  and  place  to  hear  the  parties ;  and  the  party  obtaining  a 
reference,  or  who  shall  be  ordered  to  procure  the  master's  report, 
shall  serve  the  adverse  party,  at  least  four  days  exclusive  before 
the  day  assigned  for  the  hearing,  with  a  summons  issued  by  the 
master,  requiring  his  attendance  at  such  time  and  place,  and 
make  proof  thereof  to  the  master ;  and  thereupon,  if  the  party 
summoned  shall  not  appear,  or  good  cause  shall  not  be  shown 
why  he  does  not,  the  master  may  proceed  ex  parte  ;  and  if  the 
party  serving  the  summons  shall  not  appear  at  the  time  and 
place,  or  show  cause  why  he  does  not,  the  master  may  either 
proceed  ex  parte,  or  the  party  obtaining  the  summons,  and  not 
appearing,  shall  lose  the  benefit  of  the  reference,  at  the  election 
of  the  other  party. (a) 

Sept.  8th,  44^  When,  by  a  decretal  order  of  the  court,  any  inquiry 

before  a  master  is  directed  to  be  made  in  a  cause,  and  the  exam- 
ination of  witnesses  shall  be  necessary  to  obtain  the  proper 
information,  such  examination  shall,  at  the  expense  of  the  party 
requiring  it,  be  reduced  to  writing  by  the  master,  in  the  form  of 
depositions,  and  returned  and  filed  with  the  report. 


Mar.  14th 
1857. 


45.  All  references  in  divorce  and  partition,  and  in  applica- 
tions for  sales  of  lands  of  infants,  idiots,  lunatics  and  habitual 
^an'^mlf  drunkards,  [and  to  ascertain  the  value  of  dower,  or  curtesy,  in 
Dec  23ci  moneys  in  court,  and  as  to  surplus  money  on  foreclosure  sales, 
^^^^'  and  on  application  for  the  proceeds  of  sales  in  partition  suits  for 

payment  of  debts,]  shall  be  to  special  masters. 

May  20th,  40,  No  Sale  shall  be  ordered  to  be  made  by  any  master  con- 
nected in  business  with,  or  who  is  clerk  for,  or  employed  in  the 
business  of,  the  solicitor  of  any  of  the  parties  to  the  suit. 

(o)    After    taking    testimony   and  Stew.  Eq.  729.     It  is  usual  to  deliver 
hearing  counsel,  the   master  should  the  report  to  the  solicitor  who  pro- 
make  up  and  file  his  report  without  cured  the  reference,  who  files  it  with 
further  notice  to  the  parties  or  their  the  clerk, 
counsel.      Van   y^ess   v.  Van  Ness,  5 


COURT   OF   CHANCERY.  lix 

47.  On  all  reports  made  by  masters  upon  special  reference  in   May  12th, 
pursuance  of  any  order  or  decree,  the  master  shall  be  entitled  to 

four  dollars  for  making  the  report  and  thirty  cents  per  folio  for 
drawing  the  same  and  ten  cents  per  folio  for  all  schedules 
annexed  thereto,  provided,  however,  that  the  fees  for  drawing 
the  report  in  a  divorce  case  shall  not  exceed  four  dollars  and 
fifty  cents. 

X.— OF   PLEADINGS. 

48.  All  bills  and  answers,  and  other  proceedings  intended  to  ^j|Pt-  ^^^' 
be  filed,  shall  be  fairly  and  legibly  written;  and  every  bill  shall 

be  signed  by  counsel  before  it  is  filed. (a) 

49.  No  bill  or  other  pleading  shall  recite  records,  deeds  or  ^^^^• 
other  documents  in  full,  but  only  so  much  and  such  parts  thereof 

as  may  be  necessary  for  the  clear  exhibition  of  the  case,  or  the 
construction  of  the  document,  omitting  all  parts  not  relevant  to 
the  relief  sought,  or  the  defence  set  up ;  and  no  pleading  shall 
repeat  documents  or  parts  of  documents  set  forth  in  any  previous 
pleading,  but  if  the  same  are  not  fully  or  accurately  set  forth, 
may  add  such  parts  as  may  be  necessary  to  complete  or  correct 
the  same. 

50.  No  foreclosure  bill  shall  set  forth  the  bond  or  mortgage  ^^^^• 
at  length,  but  only  those  parts  thereof  upon  which  the  relief 
sought  is  founded,  including  the  date,  names  of  parties,  consid- 
eration, words  of  conveyance,  description  of  premises,  the  words 
limiting  the  estate  and  the  condition  in  full ;  and  no  costs  shall 

be  taxed  or  allowed  for  any  bill  drawn  in  palpable  violation  of 
this  rule. 

XI.— OF   PROCESS. 

51.  The  names  of  all  the  defendants  in  the  same  cause  shall  132!^^' 
be  inserted  in  one  subpoena,  unless  the  defendants  reside  in  dif- 

(a)  Signature  of  counsel  is  not  re-  Signature  of  tirni  of  counselors  to  a 
quired  to  an  answer.  Freehold  Mut.  bill  is  a  compliance  with  the  rule. 
Loan  Ass'n  v.  Broim,  1  Stew.  Eq.  42.       Hampton  v.  Coddhgton,  Id.  557. 


Ix 


RULES   OF   THE 


ferent  counties,  in  which  case  the  names  of  all  those  who  reside 
in  the  same  county  shall  be  inserted  in  the  same  subpoena. 

April,  1841.        g2.  Copies  of  tickeis  served  with  the  subpoena  upon  defend- 
ants shall  be  annexed  to  and  returned  with  the  subpoena.(a) 

53.  (Abrogated.)     Related  to  decrees  for  deficiency  in  fore- 
closure suits. 


1853. 


April,  1841. 


May  20th, 
1879. 

Amended 
May  12th, 
1893. 


Mar.  12th, 
1867. 


Amended 
May  20th, 
1879,  also 
May  12th, 
1893. 


XII.— OF  ABSENT  DEFENDANTS. 

54.  In  all  suits  against  an  absent  defendant,  an  order  may 
be  had  that  said  defendant  appear,  plead,  answer  or  demur 
to  the  complainant's  bill  in  two  months  from  the  date  of  the 
order,  unless  the  Chancellor,  for  special  reasons,  shall  otherwise 
direct.  (6) 

55.  In  cases  where  husband  and  wife  are  made  defendants, 
and  he  only  is  served  with  process  of  subpoena,  the  wife  being 
out  of  the  state,  an  order  of  publication  shall  be  taken  against 
her,  unless  an  appearance  be  entered  for  her. 

56.  No  order  of  publication  shall  be  made  in  any  suit  until 
after  the  return-day  of  the  [citation  or]  subpoena  therein,  without 
the  special  order  of  the  court. 

57.  Where  publication  is  required  for  absent  defendants  to 
appear,  plead,  answer  or  demur  to  the  bill,  there  shall  be 
published  or  served  a  notice  substantially  of  the  form  pre- 
scribed by  rule  58 ;  [and  if  published,  and  the  suit  is  concern- 
ing land,  such  publication  shall  be  in  a  newspaper  published  in 
the  county  where  the  lands  are  situated.] 


(a)  The  sheriff's  return  "  served  " 
upon  the  subpa'na  is  presumiitive 
proof  of  the  service  of  the  notice  re- 
quired by  the  rule.  Bell  v.  Gillmore, 
10  a  E.  Gr.  lOi;  3Iulford  v.  Beilly, 
5  Stew.  Eq.  419.  A  subpoena  will  not 
be  set  aside  because  returnable  on  a 


legal  holiday.     Kinney  v.  Ewing,  10 
Stev.  Eq.  339. 

{h)  Where  on  the  hearing  the 
court  considers  tlie  publication 
ordered  to  be  insufficient,  the  decree 
will  not  be  signed.  The  complainant 
takes  such  order  at  his  peril.  Stone 
V.  Stone,  1  Stew.  Eq.  409. 


COURT  OF   CHANCERY.  Ixi 

68.  Such  notice  shall  be  entitled  in  the  court  only,  not  in  the  ^lar.  12th, 
cause,  shall  be  addressed  to  the  absent  defendants  by  name,  shall 
state  the  date  of  the  order,  the  name  of  the  complainant  and 
the  time  within  which  the  absent  defendants  are  required  to  ap- 
pear, plead,  answer  or  demur ;  the  notice  shall  also  state  briefly, 
in  general  terms,  the  object  of  the  suit,  and  why  the  persons  to 
whom  it  is  addressed  are  made  defendants ;  and  in  foreclosure 
suits  state  the  parties  to  the  mortgage  to  be  foreclosed,  the  date 
thereof  and  the  township  and  county  or  incorporated  city  in 
which  the  lands  are  situate ;  such  notice  may  be  in  the  form  in 
the  schedule  hereto  annexed,  or  similar  form  adapted  to  the 
case ;  and  it  shall  be  signed  with  the  name  and  post-office  ad- 
dress of  the  solicitor  of  the  complainant,  or  of  the  complainant, 
if  he  has  no  solicitor,  and  the  mailing  of  such  notice,  in  the 
manner  herein  directed,  shall  be  sufficient  service  thereof. 

59.  The  complainant  or  his  solicitor,  or  his  agent  actually  Mar.  12th, 
entrusted  with  the  management  and  conduct  of  the  suit,  shall, 

in  all  cases  where  the  residence  and  post-office  address  of  an 
absent  defendant  not  actually  served  with  the  notice  to  appear 
shall  not  be  known,  make  diligent  and  careful  inquiry  therefor  ; 
such  inquiry  shall,  as  to  persons  made  defendants  by  reason  of  a 
judgment,  attachment  or  decree,  include  inquiry  of  the  plaintiif 's 
attorney  or  solicitor  in  such  judgment,  attachment  or  decree,  if 
residing  within  this  state,  and  as  to  persons  made  defendants  by 
reason  of  any  mortgage  or  contract  stated  in  the  bill  shall  in- 
clude inquiry  of  the  person  who  made  the  mortgage  or  contract, 
if  known  and  residing  in  this  state ;  and  in  any  suit  for  divorce,  ^^^^^^<^ 
such  inquiry  shall  be  made  of  the  nearest  relatives  of  the  de-  i»9i;  ^^iso 
fendant,  if  known ;  such  inquiries  may  be  made  in  person  or  by  i''^^- 
letter,  and  shall  state  that  suit  has  been  commenced  against  the 
person  inquired  for,  and  that  the  object  of  the  inquiry  is  to  give 
him  notice  of  such  suit,  that  he  may  appear  and  defend  it ;  and 
when  made  by  letter  shall  enclose  a  proper  postage  stamp  for 
return  of  an  answer. 

60.  No  decree  'pro  confesso  shall  be  taken  against  an  absent  ^lar.  12th, 
defendant  who  has  not  appeared  or  been  served  with  process  of 


ixii 


RULES   OP   THE 


Amended 
Feb.  3d, 
1891,  also 
Mav  12th, 

1893. 


subpoena,  unless  it  shall  appear  by  proof  that  the  notice  pre- 
scribed by  the  58th  rule  has  been  served  personally  upon  him, 
or  that  it  has  been  published,  and  also  mailed  in  the  manner 
required  by  law,  or  unless  it  shall  appear  by  the  affidavit  of  the 
complainant  or  his  solicitor,  or  the  person  actually  entrusted  with 
the  management  and  conduct  of  the  suit,  that  inquiry  has  been 
made  in  good  faith  and  without  success,  for  the  post-office  address 
of  such  defendant,  in  the  manner  required  by  these  rules,  and  in 
such  other  manner  as  the  affiant  supposed  would  probably  give 
information  thereof  if  the  same  could  be  had.  [And  in  a  suit 
for  divorce  the  affidavit  shall  be  made  by  the  complainant  or  his 
solicitor,  and  shall  fully  specify  the  inquiry  made,  of  what  per- 
sons and  in  what  manner  it  was  made,  so  that  by  the  facts 
stated  in  such  affidavit  it  may  appear  that  the  inquiry  has  been 
of  the  character  intended  not  only  by  the  letter  but  also  by  the 
spirit  of  rule  59.] 


Dec.  23d, 
1871. 


61.  The  57th,  58th,  59th  and  60th  rules  shall  apply  to  suits 
for  divorce  commenced  by  petition,  and  to  all  other  proceedings 
commenced  by  petition  ;  and  the  term  complainant,  in  the  rules 
of  this  court,  shall  be  held  to  include  the  petitioner  in  suits  or 
proceedings  commenced  by  petition. 


XIII.— OF   AFFIDAVITS   TO   ANSWERS   BY 
DEFENDANTS   OUT  OF  THE   STATE. 


Oct.,  1S70. 


Amended 
Mav  12th, 
1893. 


62.  Where  an  answer  shall  be  sworn  to  by  a  defendant  out  of 
this  state,  the  oath  may  be  taken  before  a  master  in  chancery  of 
this  state  or  a  notary  public,  certified  under  his  seal,  [and  other- 
wise in  compliance  with  the  requirements  of  statute,]  or  before 
any  person  who  shall  be  authorized  by  the  law  of  this  state  to 
take  the  acknowledgment  of  the  execution  of  a  deed  for  lands  in 
this  state,  at  the  place  where  such  answer  shall  be  sworn  to,  and 
the  authority  to  such  person  shall  be  certified  in  the  same  man- 
ner as  required  for  the  recording  of  a  deed  acknowledged  before 
him. 


COURT  OF  CHANCERY.  Ixui 

XIV.— OF  INFANT  DEFENDANTS  AND  SUITS 
ON  MORTGAGES. 

63.  For  the  purpose  of  having  a  guardian  appointed  for  an  Sept.  sth, 
infant  to  answer  and  defend  a  suit,  a  petition  may  be  presented 

by  the  infant,  if  above  the  age  of  fourteen  years,  or  if  under  that 
age,  by  his  father,  or  some  other  friend  in  his  behalf,  praying 
such  appointment;  an  agreement  expressing  the  assent  of  the 
person  petitioned  for  to  accept  of  the  appointment,  and  also  an 
affidavit  or  affidavits  that  the  petition  and  agreement  were  duly 
signed,  and  verifying  the  age  of  the  infant,  shall  accompany  the 
petition. 

64.  When  a  bill  is  filed  against  an  infant,  or  when,  upon  an  ^^p,*-  ^^^' 
abatement,  any  infant  shall,  by   order  of  the  court,  be  made  a 
defendant,  and  no  application  shall  be  made  on  his  behalf,  within 

four  days  next  after  the  day  of  appearance  specified  in  the  sub- 
poena or  order  of  publication,  for  the  appointment  of  a  guardian, 
the  Chancellor  may,  on  an  application  on  behalf  of  the  complain- 
ant, by  order,  assign  a  guardian  for  the  infant,  the  same  as  if  he 
had  been  brought  into  court  for  that  purpose,  or  make  such  other 
order  as  may  appear  most  proper  and  advisable  in  the  premises ; 
but  fifteen  days'  notice  of  such  application  must  be  given  to  the 
infant,  if  of  the  age  of  fourteen  years  and  resident  within  this 
state,  or,  if  under  that  age  or  not  a  resident  in  this  state,  to  his 
guardian  appointed  by  the  Orphans'  Court,  if  any  there  be,  and 
if  no  such  guardian,  to  the  father  of  such  infant,  or  if  no  father, 
then  to  the  mother,  [and  if  no  mother,  to  the  person,  if  any,  who  ^™/i2th^ 
stands  in  loco  parentis  to  the  infant] — provided  such  guardian,  i^^^- 
father  or  mother  be  resident  in  this  state ;  which  notice  may  be 
served  at  the  time  of  the  service  of  the  subpoena  or  at  any  time 
after,  (a) 

(a)  The  guardian  ad  litem  will  be  gate,   8   C  E.   Gr.   372.     The   siutor 

directed  to  employ  counsel  to  repre-  who   seeks   relief   against   an   infant 

sent  the  infant,  where  the  interest  of  must  prove  his  whole  case.     Shulfz  v. 

the  infant  requires  it.     Colgate  v.  Col-  Sanders,  11  Stew.  Eq.  154. 


Ixiv  RULES   OF   THE 

May  21st,  65.  In  suits  for  the  satisfaction  of  a  mortgage,  when  an  appli- 

cation shall  be  made  for  the  appointment  of  a  guardian  for  an 
infant  defendant,  as  provided  for  in  the  last  preceding  rule,  or 
when  it  shall  appear  by  affidavit,  to  the  satisfaction  of  the  Chan- 
cellor, that  notice  cannot  be  served,  as  mentioned  in  that  rule,  the 
Chancellor  may,  on  the  application  of  the  complainant,  appoint 
the  clerk  of  the  court  guardian  ad  litem  for  such  infant,  whose 
duty  it  shall  be,  if  no  application  shall  be  made  on  behalf  of  the 
infant  for  the  appointment  of  a  guardian  within  the  time  allowed 
by  law  for  such  infant  to  answer,  plead  or  demur  to  the  bill,  to 
enter  an  appearance  for  the  infant  to  the  suit ;  after  which  the 
complainant  may,  if  the  suit  is  against  the  infant  alone,  or  the 
bill  shall  have  been  ordered  to  be  taken  jpro  confesso  against  the 
other  defendant  or  defendants,  take  an  order  to  refer  the  cause  to 
a  master  to  ascertain  the  truth  of  the  allegations  of  the  complain- 
ant's bill,  and  to  take  an  account  of  what  is  due  upon  the  com- 
plainant's mortgage  (if  anything),  and  also  upon  any  other  en- 
cumbrance, the  amount  of  which  it  may  be  necessary  to  ascertain, 
and  if  more  encumbrances  than  one,  to  report  their  several  pri- 
orities ;  and  the  complainant  and  every  other  person  setting  up 
an  encumbrance  before  the  master,  affecting  the  estate  or  interest 
of  such  infant,  shall  prove  his  demand  before  the  master,  and 
the  master  may,  if  he  thinks  proper  so  to  do,  examine  the  com- 
plainant or  other  person  setting  up  such  demand,  on  oath  or 
affirmation,  to  ascertain  the  truth  thereof,  and  shall  report  such 
examination  (if  any)  and  all  the  proofs  taken  before  him  to  the 
court ;  and  shall  also  inquire  and  report  whether,  under  the  cir- 
cumstances of  the  case,  a  sale  of  the  whole,  or  a  part  only,  of  the 
mortgaged  premises  is  necessary  to  be  made,  and  any  other 
special  matter  which  the  master  may  deem  proper  for  the  benefit 

Amended  of  the  infant ;  [and  if  no  exception  to  said  master's  report  shall 
be  filed  within  four  days  after  the  filing  of  said  report,  the  com- 
plainant shall,  without  further  notice  or  setting  down  such  cause 
for  hearing,  be  entitled  to  a  final  decree.] 


COURT  OF   CHANCERY,  lx\r 


Xy.— OF    AMENDMENTS. 

66.  The  complainant  may  amend  his  bill  of  course,  and  with-  ^|p*-  ^^^' 
out  motion  or  rule,  at  any  time  before  answer,  plea  or  demurrer 

filed,  and  without  costs,  (a) 

67.  If  the  defendant  put  in  an  answer,  which  is  excepted  to  Sept.  8th 
as  insufficient,  and  the  defendant  submit  to  answer  further,  or 
the  answer  shall,  on  reference,  be  reported  insufficient,  in  either 
case  the  complainant  may  amend  his  bill  of  course,  and  without 
costs,  and  the  defendant  shall  answer  the  amended  bill  and  the 
exceptions  together ;  and  if  the  defendant  shall  plead  or  demur, 
and  the  plea  or  demurrer  shall  be  overruled,  the  complainant 
may,  before  the  filing  of  an  answer,  amend  his  bill  of  course, 
and  without  costs. 


1817. 


68.  In  all  cases  not  before  mentioned,  in  which  the  defendant  sep^t.  stii, 
shall  have  answered  the  complainant's  bill,  and  the  complainant 

shall  obtain  leave  to  amend,  if  such  amendment  require  a  new 
or  further  answer,  then  the  complainant  shall  pay  costs  to  be 
taxed.(6) 

69.  In  all  cases  where  the  defendant's  appearance  has  been  Sept.  8th, 
entered,  and  he  has  procured  a  copy  of  the  bill,  and  the  com- 
plainant is  allowed  to  amend  without  costs,  he  shall  furnish  the 
defendant  with  a  certified  copy  of  the  amended  bill,  or  amend 

the  defendant's  copy,  gratis. 

70.  If  the  defendant  demur  to  the  bill  for  want  of  parties,  or  sept.  sthj; 
other  defect  which  does  not  go  to  the  equity  of  the  whole  bill, 

(a)  An  amended  bill  is  considered  Motf,  1  McCart.  431 ;  see  Midmer  v. 

as  an  original  bill,  and  a  new  sub-  Midmer,  11  C.  E.  Or.  299 ;    Wilson  v. 

poina  to  answer  is  not  necessary  when  Broivn,    2   Beas.   277  ;    Armstrong    v. 

the    defendant    has     not    appeared.  Ross,  5  C.  E.  Gr.  109  ;  Elmer  v.  Loper, 

Equitable  Society  v.  Laird,  9  C  E.  Gr.  10  C.  E.  Gr.  475 ;  Paidison  v.    Van 

319.     A  bill  may  be  amended  as  to  Iderstine,  1  Stew.  Eq.  306. 
matter  of  form  as  of  course,  at  any  (6)  For  practice  as  to  amendments, 

time  before  replication  filed.  Buck-  see  Barton  v.  Long,  18  Stew.  Eq.  841. 
ley  V.  Corse,  Sax.  504 ;  Coddington  v. 


1817. 


Ixvi  EULE8   OF   THE 

the  complainant  may  amend  of  course  at  any  time  before  the 
next  term  after  filing  the  demurrer,  upon  payment  of  costs  to  be 
taxed. 

May  21st,  ijr  j^  When  a  complainant  shall  amend  his  bill,  which  has  been 

sworn  to,  no  interlineation,  erasure  or  other  alteration  shall  be 
made  in  the  original  bill  on  file ;  but  the  amended  bill  shall  be 
engrossed  anew,  sworn  to  and  filed,  and  annexed  to  the  original 
bill,  unless  the  court  shall  otherwise  order. 


XVI.— OF  EXCEPTIONS. 

ml  ^^^^'  ^^'  When  a  complainant  shall  take  exceptions  to  an  answer, 

for  impertinence  or  scandal,  he  may,  at  the  same  time,  except  to 
the  answer  for  insufficiency ;  and  all  exceptions  to  an  answer  for 
impertinence,  scandal  or  insufficiency  shall  be  referred,  by  one 
rule,  to  the  same  master ;  and  after  a  reference  of  the  answer  for 
impertinence  or  scandal,  the  complainant  shall  not  be  allowed  to 
refer  the  answer  for  insufficiency ;  nor  after  a  reference  for 
insufficiency  shall  there  be  a  reference  of  the  same  answer  for 
impertinence  or  scandal,  (o) 

May2ist,  73,  A  rule  of  course  to  refer  exceptions  to  an  answer  for 

insufficiency  shall  not  be  entered  until  six  days  after  service  of 
a  copy  of  the  exceptions  on  the  defendant  or  his  solicitor ;  and 
if  the  defendant  shall,  within  that  time,  submit  to  answer  the 
exceptions,  he  shall  give  notice  thereof  to  the  complainant's 
solicitor,  and  pay  the  costs  of  the  exceptions ;  and  in  that  case, 
if  the  complainant  shall,  within  six  days  after  such  notice,  or 
within  such  further  time  as  the  court  shall  allow,  amend  his  bill 
and  the  defendant's  copy,  the  defendant  shall  answer  the  excep- 
tions and  amendments  at  the  same  time. 

(a)  On  bill  for  injunction  excep-  injunction.  The  motion  and  the  ex- 
tions  to  the  answer  will  not  delay  the  captions  will  be  heard  together, 
hearing  of  a  motion  to  dissolve  the       Wyckoff  v.  Cochran,  3  Or.  Ch.  420. 


COURT  OF   CHANCERY.  IxVl 

74.  When  a  defendant  shall  have  given  notice  that  he  sub-  May  21st, 
mits  to  answer  the  exceptions,  he  shall  file  a  second  or  further 
answer  within  [twenty]  days  after  the  complainant  has  amended  ^g^®^*^®*^ 
his  bill  and  the  defendant's  copy,  if  the  complainant  shall  amend 

his  bill ;  or  if  the  complainant  shall  not  amend  his  bill,  then 
within  [twenty]  days  after  receiving  a  copy  of  the  exceptions,  or 
on  failure  thereof,  the  complainant's  bill  shall  be  taken  as  con- 
fessed, and  such  proceedings  had  thereon  as  if  the  first  or  origi- 
nal answer  had  not  been  filed. 

75.  When  an  answer  shall  be  excepted  to  for  insufficiency  and  1822^^^*' 
for  impertinence  and  scandal,  or  for  insufficiency  and  imperti- 
nence or  scandal,  if  the  defendant  submits  to  answer  the  excep- 
tions for  insufficiency,  but  does  not  at  the  same  time  give  notice 

that  he  consents  to  have  the  parts  of  the  answer  excepted  to  for 
impertinence  or  scandal  expunged,  the  complainant  may  imme- 
diately and  of  course  enter  a  rule  to  refer  the  exceptions  for  im- 
pertinence or  scandal  to  a  master. 

76.  Exceptions  to  any  pleading  or  other  matter  pending  be-  ^^^^• 
fore  the  court,  for  scandal  or  impertinence,  shall  be  taken  in  the 
same  manner  as  exceptions  to  an  answer  for  insufficiency,  and 
may  be  submitted  to  in  like  manner,  and  within  the  same  time ; 

if  they  are  not  submitted  to,  the  party  excepting  shall  refer  them 
in  the  same  manner,  or  they  shall  be  considered  as  abandoned. (a) 


XVIL— OF   INTERROGATORIES. 

77.  If  the  defendant  intend  to  exhibit  interrogatories  to  the  ^|p*-  ^^^' 
complainant,  he  shall  file  the  same,  and  serve  a  copy  thereof 

(«)  In  New  Jersey  exception  may  Cumberland  Ins.  Co.,  9  Sleiv.  Eq.  393. 

be  filed  to  a  bill  for  impertinence  or  The  rule  to  file  exceptions  and  refer 

scandal.     C.  <fe  A.  R.  B.  Co.  v.  Stew-  them  to  a  master  is  for  the  relief  of 

art,  4  C.  E.  Gr.  343.     No  exceptions  the    court.      They    may    be    heard 

will  lie  to  answers  of  corporations,  for  directly  by   the    Chancellor    at    his 

they  are   not   evidence.      Wallacr  v.  option.     C.  &  A.  E.  B.  Co.  v.  Stewart, 

Wallace,  July,  1828;  but  see  Beed  v.  supra. 


RULES   OF   THE 

within  fifteen  days  after  filing  his  an8wer,(a)  and  not  after,  with- 
out leave  of  the  Chancellor;  and  the  complainant  shall  answer 
the  said  interrogatories  within  thirty  days  after  service  thereof, 
unless  the  Chancellor  shall  allow  further  time  for  answering  the 
same ;  and  if  the  complainant  except  to  the  interrogatories,  he 
shall  file  his  exceptions  within  ten  days  after  service  of  the  inter- 
rogatories, and  enter  a  rule  of  course  with  the  clerk  to  refer  them 
to  a  master,  who  shall  decide  and  report  thereon  within  fifteen 
days  after  they  are  filed ;  but  an  appeal  from  such  report  shall 
be  allowed  to  the  Chancellor,  if  taken  within  ten  days  after  filing 
the  master's  report ;  and  the  Chancellor,  whether  in  term-time 
or  vacation,  upon  ten  days'  notice  given  by  either  party,  shall 
hear  and  determine  the  same;  and  if  the  said  exceptions  be 
overruled,  the  complainant  shall  pay  costs  to  the  defendant;  but 
if  any  of  the  said  interrogatories  shall  be  adjudged  to  be  im- 
proper, the  defendant  shall  pay  costs  to  the  complainant. 


XVIII.— OF   EXAMINATIONS. 

78.  When  any  cause  shall  be  at  issue,  and  the  interrogatories 
exhibited  to  the  complainant,  if  any,  answered,  each  party,  the 
complainant  first,  and  then  the  defendant,  shall  proceed  to  take 
and  complete  the  testimony  on  his  part  before  an  examiner,  by 
sessions  continued  from  day  to  day,  on  proper  notice  of  the  time 
and  place  of  commencing  the  same,  [which  notice  shall  be  served 
at  least  [ten]  days  before  the  day  appointed  for  taking  the  exami- 
nation.](6) 

(a)    A    complainant    will    not    be  the  bill,  may  be  regarded  as  Incor- 

ordered     to    answer     interrogatories  porated  in  it.     Momaine  v.  Hendrick- 

which    are   not   filed   within    fifteen  son,  9  C.  E.  Gr.  231. 
days  after  filing  the  answer,  unless  a  (6)  No  notice  having  been  given 

sufficient  reason  has  been  disclosed  to  of   the    time   and    place    of   taking 

excuse  the  neglect  on  the  part  of  the  depositions,  they  must  be  suppressed, 

defendant  to  file  his   interrogatories  The  adjournment  does  not  supply  the 

pursuant  to   the   rule   of  the   court.  place  of  the  notice  required.     Parker 

Phelps  V.  Curtis,  1  Qr.  Ch.  387.     The  v.  Hayes,  8  C.  E.  Gr.  186. 
interrogatories,  where  referred  to  in 


COURT   OF   CHANCERY.  Ixix 

79.  Testimony  shall  not  be  taken,  except  by  consent,  before  May  20th, 
an  examiner  who  is  a  partner  of,  or  connected  in  business  with, 

or  clerk  for,  the  solicitor  of  either  of  the  parties. 

80.  The  complainant  shall  commence  taking  testimony  on  ises. 
his  part  within  [fifteen]  days  after  issue  joined,  and  shall  con-  Amended 
elude  the  same  in  thirty  days,  and  declare  to  the  examiner  when  is^^. 
the  testimony  on  his  part  is  concluded. 

81.  Within  fifteen  days  after  the  testimony  on  the  part  of  the  ises. 
complainant  is  declared  to  be  concluded,  or  after  the  time  for 
taking  the  same  has  expired,  if  no  such  declaration  has  been 
made,  the  defendant  shall  commence  taking  testimony  on  his 
part  if  any  he  has,  and  shall  conclude  the  same  in  thirty  days, 
and  declare  when  the  same  is  concluded.(a) 

82.  The  examiner  may,  at  the  request  of  the  party  taking  1868. 
testimony,  adjourn  to  any  day  within  said  thirty  days,  and  to 
any  place  within  the  county ;  and  any  examiner  may  take  such 
testimony,  or  any  part  thereof,  in  place  of  the  examiner  named 

in  the  notice,  or  before  whom  the  testimony  was  commenced ; 
but  only  one  examination  shall  proceed  in  the  same  cause  at  the 
same  time,  except  on  commission  by  interrogatories. 

83.  When  the  defendant  shall  declare  the  testimony  on  his  ises. 
part  closed,  or  when  the  thirty  days  for  taking  testimony  on  his  v 
part  shall  have  expired,  the  complainant  may  proceed  immedi- 
ately, or  by  adjournment  not  exceeding  ten  days,  with  testimony 

to  rebut  the  testimony  of  the  defendant,  or  to  sustain  testimony 
on  his  part,  impeached  or  contradicted  by  the  defendant,  and  the 
defendant  may  afterwards  produce  counter  rebutting  evidence  on 
his  part ;  but  such  evidence  shall  not  be  continued  for  more  than 
five  days  on  each  side. 

(a)  A  witness  cannot,  without  ex-  definitely  stated  when  tlie  witness  is 

press     leave    of    tlie    court,    be    re-  recalled.     Osborne  v.  O'lleiUif,  7  Stew. 

examined  ;is  to  a  matter  upon  which  Eq.  60.      See   as  to  laches,  Jioon  v. 

he  has   ah-eady  been  examined,  but  Pierpont,  5  Slew.  Eq.  217. 
this  ground  of  objection   should   be 


Ixx  EULES  OF  THE 

186S.  84.  The  examiner  may,  at  the  request  of  either  party,  adjourn 

the  examination  to  a  day  within  the  time  limited  to  said  party,, 
giving  precedence  to  the  request  of  the  party  then  proceeding 
with  taking  testimony  ;  and  when  such  adjournment  is  regularly 
made  at  the  time  and  place  at  or  to  which  an  examination  was 
noticed  or  adjourned,  no  notice  of  the  same  need  be  given. 

1868.  85.  If  either  party  cannot  complete  his  testimony  within  such 

thirty  days,  his  time  may  be  enlarged,  upon  motion,  on  notice 
served  before  the  expiration  of  said  time,  for  reasons,  verified  by 
proof,  satisfactory  to  the  Chancellor. 

1868.  86.  The  time  for  taking  testimony  above  limited  shall  not  be 

extended,  except  by  written  consent  or  by  order  of  the  court^ 
made  upon  notice. 

1863.  87.  No  legal  holiday,  except  Sunday,  nor  any  day  between 

the  fifteenth  day  of  July  and  first  day  of  September,  unless 
occupied  in  taking  testimony,  shall  be  computed  as  part  of  said 
limited  time. 

1855.  88.  Where  any  complainant  or  petitioner  in  any  action  or 

proceeding  in  this  court  shall  desire  to  avail  himself  of  the  bene- 
fit of  the  sixth  section  of  the  "Act  concerning  evidence,"  {Rev., 
p.  379,)  he  shall  be  sworn  and  examined  as  a  witness,  for  the 
purposes  mentioned  in  the  act,  before  any  other  witness  shall  be 
examined  in  the  cause,  either  on  the  part  of  the  complainant  or 
defendant;  and  the  testimony  of  such  complainant  shall  be 
taken  within  twenty  days  after  issue  joined. (a) 

1853.  89.  The  exhibits  oifered  in  any  cause,  except  books  of  account 

in  actual  use,  shall,  upon  request,  be  left  with  the  examiner  for 
such  reasonable  time  as  he  may  prescribe,  that  the  same  may  be 
examined  by  other  parties,  and  copies  made  by  the  examiner, 
unless  the  party  producing  them  will  furnish  such  copies,  and 

(a)  This  section  does  not  extend  to  this  section  even  after  the  deatli  of 

the  trial  of  an  issue  out  of  chancery.  the  defendant.     Lanning  v.  Lcmningy 

Black  V.  Lamb,   1   Beas.  110.    The  2  C.  E.  Gr.  228. 
complainant  may  he  a  witness  under 


COURT   OF   CHANCERY.  Ixxi 

then  they  may  be  inspected  as  directed  by  the  examiner,  in  the 
presence  and  custody  of  the  party  producing  them ;  and  there 
shall  be  paid  for  such  copies,  when  made  by  the  master,  ten 
cents  per  folio,  and  when  made  by  the  party,  four  cents  per  folio, 
which  shall  be  allowed  and  taxed  as  costs  in  the  cause. 

90.  All  depositions  of  witnesses  before  examiners  shall  be  is^s. 
taken  down  in  the  first  person,  as  spoken  by  the  witness,  and, 

as  nearly  as  practicable,  in  the  words  of  the  witness ;  and  such 
depositions  shall  be  taken  down  in  the  narrative  form,  and  not 
by  entering  both  question  and  answer,  except  in  cases  where  the 
examiner  shall,  from  the  subject-matter  or  the  manner  of  the 
witness,  determine  that,  in  his  opinion,  it  is  necessary  for  the 
correct  understanding  of  the  evidence,  or  of  the  disposition  of 
the  witness,  to  take  down  both  question  and  answer,  and  in  such 
case,  the  examiner  shall  enter  on  his  minutes  and  sign  his  deter- 
mination to  that  effect:  [provided ,  that  in  litigated  cases,  the  Amended 

X     ^-  1  /.,.,?,  May  12th, 

testimony  may,  by  consent  of  the  parties,  be  taken  by  a  steno-  1893. 
grapher,  question  and  answer,  and  afterwards  written  out  in 
full]. 

91.  When  issue  shall  be  joined  on  a  plea,  the  defendant  shall  i^es. 
begin  taking  testimony,  and  the  same  shall  then  proceed  in  the 
manner  above  directed ;    but    the    times  for   commencing  and 
taking  the  same  by  each  party  shall  be  one-third  of  the  times 
prescribed  in  the  above  rules. 

92.  The  examiner  shall  number  each  page  of  the  examination  ises. 
taken  by  him,  and  also  every  tenth  line  of  the  same,  leaving 
sufficient  margin  for  the  purpose ;  and  where  more  than  one  wit- 
ness is  examined,  he  shall  annex  a  separate  leaf  to  the  exami- 
nation, containing  a  list  of  the  names  of  the  witnesses,  and  a 
reference  to  the  pages  on  which  their  examination  respectively 
commences ;  and  no  costs  shall  be  taxed  for  any  examination 
when  this  rule  has  not  been  strictly  complied  with. 

93.  It  shall  be  the  duty  of  the  examiners  of  this  court  to  sept.  sth, 
transmit,  without  any  unnecessary  delay,  all   depositions   and 
examinations  of  witnesses  by  them  taken  in  any  cause  pending 


Ixxii  RULES   OP   THE 

in  this  court,  to  the  clerk  of  the  court,  to  be  filed  ;{a)  and  all 
depositions  and  examinations  of  witnesses  taken  in  a  cause  by 
an  examiner  shall  be  filed  in  the  clerk's  office,  within  ten  days 
after  the  examination  of  witnesses  in  the  cause  shall  be  closed ; 
[and  no  examination  shall  be  filed  after  the  expiration  of  the 
said  ten  days,  without  an  order  of  the  Chancellor  directing  the 
filing  thereof.] 


Amended 
1868. 


1868 


May  21st,  94.  lu   Order  to  compel   the  attendance  of  witnesses   who 

reside  in  the  state,  before  the  examiners  of  the  court,  for  the  pur- 
pose of  giving  evidence  in  a  cause  depending  in  the  court,  a 
subpoena  may  be  issued  by  the  clerk,  upon  request  of  any  com- 
plainant or  defendant,  or  his  solicitor,  with  a  blank  for  the 
names  of  the  witnesses,  to  be  filled  up  by  the  party  procuring 
the  same,  as  occasion  may  require,  commanding  the  attendance 
of  the  witnesses  before  the  examiner  therein  named,  at  the  time 
and  place  therein  expressed ;  and  the  names  of  any  number  of 
witnesses  may  be  inserted  in  the  same  subpoena. 

1853.  95.  No  documentary  evidence  which  is  not  made  an  exhibit 

before  the  master,  shall  be  read  at  the  hearing  of  the  cause, 

Amended  [except  records  or  files  of  this  court,  which  may  be  read  upon 
notice  given  before  the  testimony  of  the  party  giving  the  notice 
is  closed.] 


XIX.— OF  COMMISSIONS   TO  TAKE   TESTIMONY. 

Sept.  8th,  96.  When  a  cause  is  at  issue,  a  commission  for  the  examina- 

1817 

tion  of  a  witness  out  of  this  state  may  be  applied  for,  either  in 
vacation  or  in  term-time,  upon  affidavit  stating  that  the  witness 
is  material,  and  that  the  party  applying  cannot  safely  proceed  to 
a  hearing  of  the  cause  without  his  testimony ;  and  upon  giving 
^mended  [five]  days'  notice  of  the  intended  application,  with  the  name  or 
18'^-  names  of  the  witnesses,  their  residence,  and  the  name  or  names, 

(a)  Examiners  are  not  authorized  their  fees.  Application  should  be 
to  retain  depositions  in  their  posses-  made  to  the  court  for  relief  in  such 
sion  because  of  the  non-payment  of      cases.     Anon.,  1877. 


COURT   OF   CHANCERY.  Ixxiii 

additions  and  residences  of  such  person  or  persons  as  the  party 
applying  intends  to  nominate  as  commissioner  or  commissioners. 

97.  If  the  party  to  whom  notice  is  so  given  intends  to  join  in  May  2i8t, 
the  commission,  and  to  name  any  other  commissioner  or  com- 
missioners, he  shall  give  notice  to  the  adverse  party  two  days 
before  the  intended  application,  of  the  name  or  names,  additions 

and  residences  of  the  person  or  persons  whom  he  proposes  for  a 
commissioner  or  commissioners;  and  the  Chancellor  shall  ap- 
point the  commissioner  or  commissioners  to  execute  the  commis- 
sion ;  and  the  party  who  shall  first  give  notice  of  his  intention 
to  move  for  the  commission  shall  sue  out  and  forward  the  same ; 
but  if  he  shall  unreasonably  delay  so  to  do,  the  other  party  may 
forward,  and  cause  it  to  be  executed  and  returned ;  [and  every  Amended 
order  for  a  commission  shall  fix  a  time  for  its  return,  and  it  shall 
not  be  used  if  not  returned  within  said  time,  unless  the  time  be 
extended  by  an  order  for  that  purpose,] 

98.  The  name  of  every  witness  to  be  examined  by  virtue  of  J'gU^^^*' 
such  commission  shall  be  inserted  therein,  and  the  interrogatories 

to  be  administered  to  the  witnesses  annexed  to  the  commission ; 
and  copies  of  the  interrogatories  shall  be  furnished  to  the  oppo- 
site party — that  is  to  say,  copies  of  all  direct  interrogatories  shall 
be  furnished  six  days,  and  copies  of  the  cross- interrogatories  two 
days,  before  [the  time  of  submitting  the  same  to  the  Chancellor  i^^^^*^®*^ 
for  his  approval ;  and  notice  of  the  time  and  place  of  such  sub- 
mission shall  be  served  with  the  interrogatories,  at  which  time 
and  place  the  cross-interrogatories  shall  also  be  submitted.] 


XX.— OF  PHINTING   PLEADINGS  AND 
EVIDENCE. 

99.  In  all  cases  the  pleadings  and  evidence  in  any  cause  to  oct.  ist, 
be  used  on  the  hearing  shall  be  printed,  unless  the  same  shall  be 
less  than  [one  hundred  and  twenty]  folios ;  and  the  printing  shall  ji^y  mh^ 
be  paid  for  as  directed  in  the  100th  rule  of  this  court ;  and  in  ^^^^• 
cases  where  part  of  the  evidence  consists  of  exhibits,  only  those 


1866. 


Ixxiv  RULES   OF   THE 

parts  of  the  exhibits  shall  be  printed  upon  which  some  question 
exists,  or  shall  be  made  by  the  parties  in  the  cause. 

July  1st,  100.  Parties  may  agree  to  print  the  pleadings  and  evidence 

in  any  cause  for  the  final  hearing,  or  if  they  do  not  agree,  either 
party  may  apply  for  an  order  that  the  same  be  printed  at  the 
joint  expense  of  both  parties ;  in  both  cases  each  party  shall,  in 
the  first  instance,  pay  a  share  of  the  costs  of  printing,  in  propor- 
tion to  the  length  of  his  examinations,  cross-examinations  and 
exhibits,  and  such  payment  shall  be  allowed  in  the  taxation  of 
costs ;  and  either  party  may,  at  his  own  risk,  cause  the  evidence 
to  be  printed,  in  which  case  the  Chancellor  shall  make  such 
order  for  payment  of  printing  as  he  shall  deem  right  on  the 
determination  of  the  suit ;  and  all  evidence  shall  be  printed  on 
good  paper,  with  a  large  margin,  on  which  every  tenth  line 
shall  be  numbered. 


XXI.— OF   DECREES. 

Sept.  8th,  101.  No  final  decree  shall  be  enrolled  by  the  clerk  until  the 

1817. 

Amended     expiration  of  ten  days  after  pronouncing  the  same ;   nor  shall 

May20tli,         ,  ^  ,,  -  r  1    ,  ,        .0,1  11  .  1  .  1        . 

1879.  the  enrollment  be  signed  by  the  Chancellor  within  such  time 

without  the  special  order  of  the  court, 

Apriuth,  102.  Every  party  who   may  be  afiPected    by  any  order   or 

decree,  shall  be  held  to  have  waived  all  objection  to  the  form 
thereof,  unless  he  shall  file  his  objection  thereto  in  ten  days  from 
the  time  of  filing  such  order  or  decree.  The  objection  shall 
specify  the  part  or  parts  of  the  order  or  decree  to  which  he 
objects,  and  state  what  the  form  ought  to  be ;  provided,  that 
nothing  herein  contained  shall  be  held  to  prevent  or  preclude 
an  application  to  the  Chancellor  to  settle  the  form  of  the  order 
or  decree  at  any  time. 

April  4th,  103.  Evcry  party  who  may  be  aifected  by  an  award  of  costs 

in  any  order  or  decree  where  the  opinion  is  silent  on  the  subject 
of  costs,  shall  be  deemed  to  have  waived  all  objections  thereto, 
unless  he  objects  in  writing  in  ten  days  from  the  filing  of  the 


COURT   OP   CHANCERY.  Ixxv 

order  or  decree ;  provided,  that  nothing  herein  contained  shall 
be  held  to  prevent  or  preclude  an  application  to  the  Chancellor 
at  any  time  to  change  the  order  or  decree  as  to  the  award  of 
costs. 


XXII.— OF  COSTS. 

104.  The  clerk  shall  not  tax  costs  for  setting  down  any  cause,  ^lay  21st, 
plea,  demurrer  or  other  matter  for  hearing  or  argument  more 

than  twice,  unless  when  set  down  by  a  special  order  of  the  court. 

105.  If  a  party  gives  notice  of  a  motion,  and  does  not  move  ^i|y2ist, 
accordingly,  he  shall,  upon  the  filing  of  the  notice,  pay  to  the 

other  side  costs  to  be  taxed,  unless  the  court,  upon  a  considera- 
tion of  the  circumstances  of  the  case,  shall  direct  otherwise. 

106.  When  a  party  shall  set  down  a  cause  for  hearing  or  ^^.^J^ist, 
argument,  and  give  notice  thereof,  and  shall  not  bring  on  the 

same  agreeably  to  his  notice,  the  opposite  party,  upon  the  pro- 
duction of  the  notice,  shall  be  entitled  to  costs  to  be  taxed,  for 
attendance  on  the  court  upon  such  notice,  unless  the  court  shall 
order  off  the  hearing  or  argument  without  costs. 

107.  When   the  hearing  or  argument  of  a  cause  shall  be  ^laysist^ 
ordered  off  upon  the  application  of  a  party  to  whom  notice  shall 

have  been  given,  the  party  setting  down  the  cause  shall  be 
entitled  to  costs  for  attendance  on  the  court  upon  such  notice,  to 
be  taxed,  unless  the  court  shall  order  off  the  hearing  or  argu- 
ment without  costs. 

108.  A  party  shall  not  be  allowed  costs  against  his  adversary  Jan.  leth 
for  any  amendment,  or  for  any  motion  occasioned  by  his  own 
fault,  mistake  or  laches,  though  he  may,  by  his  decree,  recover 
costs  of  suit ;  and  when  the  court  makes  no  special  order  respect- 
ing costs,  a  party  making  a  successful  motion,  or  successfully 
opposing  a  motion,  shall  have  costs  against  the  other  party. 


1S28. 


109.  A  counsel  fee  of  three  dollars  shall  be  allowed  for  April,  mi. 
attending  before  a  master  or  examiner  making  report  or  taking 


Ixxvi 


Nov.  7th, 
1883. 

Amended 
May  20th, 
1879,  also 
May  12th, 
1893. 


1853. 


1853. 


1853. 


RULES  OF  THE 

depositions,  but  no  more,  though  the  solicitor  or  counsel  may 
have  attended  more  than  once,  unless  where  new  notice  was 
necessary,  and  shall  have  been  given ;  and  each  party  shall  pay 
to  the  examiner  the  costs  of  his  own  examinations  and  cross- 
examinations. 

110.  Where  testimony  is  taken  before  an  examiner  by  means 
of  a  stenographer,  the  fee  taxed  to  the  examiner  therefor  shall 
be  divided  between  him  and  the  stenographer  as  follows  :  One- 
third  to  the  examiner  and  two-thirds  to  the  stenographer ;  and 
where  testimony  shall  have  been  taken  before  a  Vice  Chancellor, 
or  an  advisory  master,  by  means  of  a  stenographer,  no  exam- 
iner's fees  shall  be  taxed  in  the  bill  of  costs. 

111.  In  taxing  costs  in  mortgage  cases,  no  costs  shall  be 
allowed  for  any  proceedings  at  law  upon  the  bond  or  mortgage ; 
but  the  clerk  shall  tax  only  such  costs  as  have  been  incurred  in 
the  proceedings  in  this  court. 

112.  In  taxation  of  costs  for  service  of  subpoena  to  answer, 
the  clerk  shall  allow  for  mileage  only  from  and  to  the  court- 
house in  the  county  where  the  service  is  made. 

113.  For  the  drawing  and  acknowledging  of  every  deed 
given  by  the  guardian  of  an  infant,  idiot  or  lunatic,  by  virtue  of 
an  order  of  the  Chancellor,  three  dollars  and  fifty  cents  shall  be 
taxed  in  the  bill  of  costs. 


XXIII.— OF    EXECUTION. 

April,  1841.  114.  No  cxecutiou  shall  issue  for  costs  allowed  by  a  decree 
or  order  of  the  court,  unless  specially  directed. 

April,  1841.  115.  Every  execution  issued  shall  be  directed  to  a  sheriff, 
unless  the  Chancellor  shall,  for  reasons  presented  to  him,  other- 
wise order. 


July  1st, 
1866. 


116.  On  any  execution  issued  for  deficiency  against  several 
defendants,  some  liable  after  the  others,  the  order  in  which  they 


COURT  OF   CHANCERY.  Ixxvil 

are  liable  as  between  themselves  shall  be  endorsed ;  and  if  the 
deficiency  be  paid  by  a  defendant  not  primarily  liable,  he  shall  - 
have  the  right  to  use  the  decree  and  execution  to  compel  the 
payment  by  parties  liable  before  him. 

117.  Every  sheriff  shall  make  return  of  his  execution,  and  pay  ^^ay  i4tb, 
to  the  clerk  of  this  court  any  surplus  in  his  hands  within  thirty 

days  after  sale ;  and  no  execution  shall  hereafter  be  directed  to 
any  sheriff  while  he  shall  be  in  default  in  either  of  the  above 
respects ;  and  any  sheriff  who  shall  pay  over  to  any  defendant 
named  in  an  execution  any  money  raised  by  him  on  the  same, 
unless  so  directed  by  the  writ,  or  by  an  order  of  the  court  after- 
wards made,  shall  have  no  allowance  for  the  same. 

118.  No  execution  or  other  process  shall  issue  on  a  final  decree  May  21st, 
until  the  expiration  of  ten  days  from  the  filing  of  such  decree, 
unless  the  Chancellor  shall  otherwise  direct. 


XXiy.— OF  INJUNCTIONS. 

119.  Where  an  injunction  is  prayed,  and  the  facts  which  are  ^^^^• 
relied  upon  for  the  injunction  are  not  within  the  knowledge  of 
the  complainant,  such  facts  shall  be  verified  by  the  oath  or 
affirmation  of  some  person  who  has  knowledge  of  the  facts,  unless 
under  the  peculiar  circumstances  of  the  case,  the  Chancellor 
shall  dispense  with  such  additional  verification. (a) 

120.  No  injunction  shall  be  allowed  against  an  incorporated  fgsf.'^^^*' 
company  or  against  any  individual,  the  effect  of  which  is  to  stay 

(«)  The  facts  need  not  be  proved  the   additional    verification    may   be 

by  the  aflSdavit  of  the  complainant.  dispensed   with,  and   the  injunction 

When    the    material    facts   are    not  may  issue  on  the  affidavit  of  the  com- 

within  his  knowledge,  they  should  be  plainant    founded    on    belief    alone, 

verified  by  the  oath  or  affirmation  of  Youngblood  v.  Schamp,  2  MeCart.  43. 

some  person  wlio  has  a  knowledge  of  If  complainant  is  absent,  or  his  affi- 

the  facts.     In   bills   charging   fraud  davit  for  any  reason  cannot  be  pro- 

and  praying  a  discovery,  or  in  any  cured,   it'  may   be   sworn   to   by   his 

case  where,  in  the  nature  of  things,  attorney,  or  by  any  person  acquainted 

positive  proof  cannot  be   expected,  with  the  facts.    Ihid, 


Ixxviii  RULES  OF   THE 

the  progress  of  any  public  work  authorized  by  a  law  of  this  state, 
without  an  order  first  made  to  show  cause,  as  provided  in  rule 
122 ;  and  this  rule  shall  not  be  dispensed  with  in  any  case, 
except  by  the  order  of  the  Chancellor  first  obtained  and  filed, 
unless  such  injunction  be  granted  by  the  Chancellor  himself. 

Sept.  8th,  121.  In  the  absence  of  the  Chancellor  from  the  city  of  Tren- 

ton, a  petition  addressed  to  him  for  an  injunction  may  be  pre- 
sented to  such  master  of  this  court,  residing  at  the  city  of  Tren- 
ton, as  the  Chancellor  shall  for  that  purpose,  by  order,  designate ; 
and  the  master  shall  exercise  the  power  of  reporting  upon  the 
propriety  of  issuing  the  injunction  prayed  for ;  and  in  case  the 
master  shall  report  that  an  injunction  ought  to  issue,  it  shall  be 
issued  by  the  clerk  on  filing  with  him  the  said  petition  and 
report.     Applications  for  the  dissolution  of  such  injunction  is  to 

mTv  2mii!  be  made,  as  in  other  cases,  to  the  Chancellor,  [or  to  a  Vice  Chan- 
cellor, who  shall,  upon  a  regular  motion-day,  sit  instead  of  the 
Chancellor.] 


1879. 


1853.  122.  Where  an  application  is  made  for  an  injunction,  and  the 

Chancellor  directs  an  order  to  be  entered  requiring  the  defendant 
to  show  cause,  on  a  particular  day,  why  the  injunction  should 
.not  be  granted,  it  shall  be  the  duty  of  the  complainant  to  serve 
such  order  on  the  defendant,  together  with  a  copy  of  the  bill  and 
afiidavits  annexed,  at  least  six  days  previous  to  the  day  fixed  for 
the  hearing,  unless  the  order  shall  otherwise  direct ;  such  order 
shall  specify  the  manner  of  service,  and  on  which  of  the  defend- 
ants, if  there  shall  be  more  than  one  ;  and  on  the  hearing  of  such 
motion,  the  defendant  may  read  his  answer  to  the  bill,  and  also 
afiidavits  in  reply  to  affidavits  annexed  to  the  bill  ;{a)  but  no 
other  affidavits  shall  be  read  on  either  side,  unless  for  special 
reasons,  the  Chancellor,  on  application  at  the  time  appointed  for 
the  hearing,  shall,  by  order,  otherwise  direct ;  and  when  further 

(a)  Affidavits  of  the  complainant  for  an  injunction  and  receiver.  Brun- 
made  after  filing  the  bill  are  not  dred  v.  Machine  Co.,  3  Gr.  Ch.  309, 
competent  to  be  read  upon  a  motion 


COURT  OF   CHANCERY. 


Ixxix 


affidavits  are  taken,  under  an  order  for  the  purpose,  they  shall 
be  taken  on  two  days'  notice  to  the  opposite  party.(a)(6) 

123.  No  motion  to  dissolve  an  injunction  before  answer  shall  April,  i84i, 
be  entertained,  [except  on  the  ground  of  want  of  equity  in  the  fges!"^^*^ 
bill,]  unless  the  defendant  shall  show  good  cause  why  an  answer 
hath  not  been  put  in,  and  where  no  answer  has  been  put  in,  and 
the  Chancellor  shall  allow  the  motion  to  be  heard  on  affidavits 
on  the  part  of  the  defendant,  the  adverse  party  shall  be  permitted 
to  rebut  them  by  counter-affidavits ;  but  such  affidavits  on  both 
sides,  shall  be  taken  on  two  days'  notice. 


124.  Where  a  motion  is  made  to  dissolve  an  injunction  upon 
the  answer,  the  defendant  shall  rely  on  his  answer  and  on  the 
affidavits  annexed  thereto,  in  reply  to  affidavits  annexed  to  the 
bill ;  and  no  affidavits,  except  those  annexed  to  the  bill,  shall  be 
read  on  such  motion  on  behalf  of  the  complainant,(c)  except  in 


1853. 


(o)  In  D  &R.  Canal  Co.  \.  Bar. 
<fe  Del.  Bay  B.  B.  Co.,  1  McCart.  445, 
leave  was  asked  by  complainants  to 
take  aflSdavits  to  rebut  certain  allega- 
tions in  the  answer.  It  was  held  to 
be  a  fair  and  reasonable  construction 
of  the  123d  rule,  that  affidavits  to 
rebut  an  answer  should  be  confined 
to  rebutting  the  affidavits  annexed  to 
the  answer.  Where  the  answer  is  by 
a  corporation,  which  is  put  in  under 
the  corporate  seal,  the  affidavits  pro- 
posed to  be  taken  are  fairly  within 
the  scope  of  the  rule.  Such  affidavits 
must  be  taken  upon  notice,  and  appli- 
cation for  an  order  to  take  the  affida- 
vits should  be  made  before  the  hear- 
ing of  the  order  to  show  cause. 

(6)  See  Sobernheimer  v.  Wlieeler,  18 
Stew.  Eg.  619. 

(c)  The  general  rule  is  that  where 
an  injunction  has  been  obtained  upon 
the  complainant's  affidavit  alone,  and 
a  motion  is  made  by  the  defendant, 
upon  filing  his  answer,  to  dissolve  the 
injunction,  affidavits  cannot  be  read 
upon    the  argument  of   the  motion 


either  in  support  of  the  bill  or  answer. 
3ferivin  v.  Smith,  1  Gr.  Ch.  192. 
Cases  of  waste  are  an  exception  to 
this  rule  Affidavits  are  admissible 
in  support  of  the  bill  to  prove  acts  of 
waste.  Ibid.  The  allegations  will 
be  taken  as  true  where  they  are  not 
met  and  denied  by  the  answer,  and  if 
the  answer  does  not  fully  meet  the 
case  disclosed  by  the  bill,  the  injunc- 
tion will  be  sustained.  Ibid.  The 
afl[idavit  of  a  third  party  annexed  to 
an  answer  cannot  be  read  upon  a 
motion  to  dissolve  the  injunction 
upon  the  answer,  where  the  com- 
plainant's affidavit  alone  is  annexed 
to  the  bill.  Mulock  v.  Mulock,  11  C. 
E.  Gr.  463.  It  is  not  necessary  that 
affidavits  annexed  to  and  filed  with 
the  answer  should  be  taken  upon 
notice,  or  that  copies  should  be  served 
on  the  adverse  party.  Gariss  v. 
Gariss,  2  Beas.  322.  The  Chancellor 
may  on  his  own  motion  dissolve  a 
preliminary  injunction  at  any  time 
without  notice.  Conorer  v.  Buckman, 
6  Stew.  Eq.  303. 


Ixxx 


KULE8  OF  THE 


reply  to  new  matter  set  up  in  the  answer,  when  the  defendant 
shall  in  any  manner  rely  on  such  new  matter  for  a  dissolution 
of  the  injunction. (a) 


Sept.  8th, 
1817. 


Amended 
May  20th, 
1879. 


125,  Whenever  a  cause  shall  beat  issue  in  any  court  of  com- 
mon law,  no  injunction  shall  issue  before  answer  filed,  to  stay 
the  trial  of  the  cause,  unless  applied  for  and  actually  taken  out 
twenty  days  previous  to  the  sitting  of  the  court,  in  the  county  in 
which  the  trial  is  to  be  had,  except  some  special  cause  shall  be 
shown  by  affidavit  to  the  Chancellor,  [or  to  a  Vice  Chancellor,] 
or  to  the  master  authorized  to  report  upon  the  propriety  of 
issuing  the  injunction  prayed  for,  and  it  shall  be  made  to  appear, 
as  aforesaid,  that  the  injunction  is  applied  for  within  a  reason- 
able time  after  the  complainant  became  apprised  of  the  circum- 
stances on  which  his  application  is  founded ;  and  whenever  an 
injunction  shall  be  granted  to  stay  proceedings  at  law  within 
twenty  days  previous  to  the  sitting  of  the  court  as  aforesaid,  it 
shall  be  upon  condition  that  the  party  pay  the  costs  at  law  of  the 
term  at  which  the  cause  was  noticed,  which  have  accrued  up  to 
the  time  of  the  service  of  the  injunction. 


3853. 


Amended 
Mav  12th, 
1893. 


126.  No  injunction  shall  be  allowed  to  stay  the  proceedings 
in  an  ejectment  suit,  after  issue  joined  thereon,  unless  the  com- 
plainant shall  give  a  bond,  with  sufficient  sureties,  in  the  penalty 
of  at  least  double  the  rent  of  the  premises  for  two  years,  if  the 
premises  are  leased  at  a  fixed  rent,  or  if  not  leased,  then  in  such 
sum  as  the  Chancellor  [Vice  Chancellor]  or  master  shall  direct, 
conditioned  for  the  payment  to  the  party  against  whom  such  in- 
junction is  granted,  of  all  such  damages  and  costs  as  may  be 
awarded  to  him,  either  at  law  or  in  this  court,  in  case  of  a  deci- 
sion against  the  party  obtaining  such  injunction. 


1853. 

Amended 
May  20th, 
1879. 


127.  Where  an  injunction  is  granted  ex  parte,  the  Chancellor 
[Vice  Chancellor]  or  master  may,  at  his  discretion,  take  from 


(a)  Where  new  matter  is  contained 
in  the  answer,  not  responsive  to  the 
bill,  which  is  relied  upon  as  a  ground 
for  setting  aside  the  injunction,  the 


complainant  may  read  affidavits  in 
contradiction  of  such  new  matter. 
Merwin  v.  Smith,  supra. 


COURT   OF   CHANCERY.  IxXXl 

the  complainant  a  bond(a)  to  the  party  enjoined,  in  such  sum  as 
may  be  deemed  sufficient,  either  with  or  without  sureties,  condi- 
tioned to  pay  to  the  party  enjoined  such  damages  as  he  may 
sustain  by  reason  of  the  injunction,  if  the  court  [shall  eventually  Amended 
decide  that  the  complainant  was  not  equitably  entitled  to  such  i878. 
injunction,]  the  damages  to  be  ascertained  in  such  manner  as 
the  Chancellor  shall  direct. 

128.  No  injunction  shall  issue  after  answer  filed,  without  sept.  8th, 
giving  five  days'  notice  of  the  application  therefor,  unless  it 

shall  be  made  to  appear  to  the  Chancellor,  Vice  Chancellor  or 
master  that  the  circumstances  of  the  case  are  such  as  to  make  it 
proper  to  dispense  with  notice.  (6) 

129.  In  all  cases  where  an  application  is  made  for  an  injunc-  April, isii. 
tion  to  the  Chancellor  for  to  a  Vice  Chancellor!  or  master,  and  Amended 
the  same  is  denied,  an  endorsement  of  the  denial  shall  be  made 

on  the  bill  or  petition,  and  the  said  bill  or  petition  shall  be  put 
on  the  files  of  the  court. 

130.  The  writ  of  injunction  shall  be  issued  within  five  days  ^^^•^^'^' 
from  the  date  of  the  order  or  fiat  therefor  and  served  within 
twenty  days  after  the  issuing  thereof;  and  within  ten  days  after  Amended 
service  a  return  of  such  service  shall  be  made  to  the  court,  and  \m. 

on  failure  thereof  the  defendant  shall  be  entitled  to  a  dissolu- 
tion of  the  injunction,  unless  the  Chancellor  shall  by  order  give 
further  time  for  the  service  and  return  of  the  writ.(c) 

(a)  The  bond  provided  for  by  the  the  court  or  the  defendant  in  the  ap- 

above  rule  is  intended  as  security  for  plication.      Ibid. ;    and  see   Dodd  v. 

damages  in  case  the  complainant  was  Flavell,   2    C.  E.   Gr.  255 ;    but  see 

not  equitably  entitled  to  the  injunc-  Broion  el  al.  v.  Easton  cl  al ,  3  Stew. 

tion    when    applied    for.      Smith   v.  Eq.  725. 

Kuhl,  11  C.  E.  Gr.  98.  To  render  (6)  See  Buckley  v.  Corse,  Sax.  504. 
the  complainant  liable  for  damages  (c)  A  subpania  must  be  taken  out 
on  his  bond  under  this  rule,  the  ap-  with  an  injunction,  and  made  return- 
plication  upon  which  an  ex  parte  in-  able  within  the  time  prescribed  by 
junction  has  been  granted  must  have  the  rule  for  the  return  of  service  of 
been  disingenuous,  mala  fide,  or  made  the  injunction.  Lee  v.  Cargill,  2 
without  due  regard  to  the  riehts  of  Stock.  331. 


Ixxxii  RULES   OF   THE 

June  19th,         131.  Inj  unctions  shall  issue  upon  the  determination  of  a  Vice 

^^^^n.^^  Chancellor  advising;  the  same. 

May  12th,  o 


XXV.— JOINDER   OF   COMPLAINANTS. 

iseJ^'*^'  132.  Any  number  of  persons  severally  owning  or  possessing 

distinct  tenements,  injuriously  aifected  by  a  common  nuisance  or 
other  common  grievance,  may  join  in  a  bill  for  injunction  or 
relief;  provided,  that  it  shall  be  in  the  discretion  of  the  Chan- 
cellor to  strike  out  of  the  bill  any  of  such  complainants,  when, 
in  his  opinion,  the  justice  of  the  case  or  convenience  of  proceed- 
ing shall  require  it. 


XXVI.— OF  ATTACHMENT  FOR  CONTEMPT. 

Sept.  8th,  133.  All  attachments  for  contempt  shall  have  at  least  fifteen 

days  exclusive  between  the  teste  and  return,  unless  the  Chancel- 
lor, upon  motion  or  petition,  shall  order  otherwise.  And  all 
persons  in  contempt  in  the  same  cause  and  in  the  same  county 
shall  be  included  in  one  writ  of  attachment. 

Sept.  8th,  134.  When  an  attachment  for  a  contempt  shall  be  served,  the 

defendant  shall  be  retained  in  custody  thereon,  to  answer  the 
exigency  of  the  writ,  until  the  return-day  thereof,  unless  he  shall, 
with  one  sufficient  surety  at  least,  give  bond  in  the  penal  sum  of 
five  hundred  dollars,  unless  the  Chancellor  shall  require  a  bond 
in  some  other  sum  to  be  named  in  the  order,  to  the  complain- 
ant, conditioned  for  his  appearance  on  the  return-day  of  the 
attachment,  according  to  the  command  of  such  writ,  and  that  he 
will  not  depart  thence  without  leave  of  the  court. 


1817 


May  21st,  135.  When  a  defendant  in  attachment  shall  have  given  bond 

1822.  .  .  ° 

for  his  appearance,  he  shall  enter  his  appearance  with  the  clerk 
on  the  return-day  of  the  writ,  and  give  notice  thereof  to  the 
adverse  party. 

May  21st,  136.  The  complainant  shall,  within  eight  days  after  such 

notice,  enter  a  rule  of  course  for  the  defendant's  examination  upon 


COURT   OF   CHANCERY.  Ixxxiii 

interrogatories  touching  his  contempt,  before  one  of  the  masters 
of  this  court,  and  serve  a  copy  thereof,  with  a  copy  of  the  inter- 
rogatories, on  the  defendant  in  attachment,  or  on  his  solicitor  ; 
and  in  case  of  his  neglect  so  to  do,  the  court  may  order  the  party 
to  be  discharged  from  the  attachment,  with  costs. 

137.  When  the  party  attached  shall  attend  before  the  master  May  21st, 

1822 

upon  the  interrogatories,  if  any  questions  arise  in  respect  to  the 
interrogatories,  they  shall  be  settled  by  the  master,  and  the  party 
attached  shall,  within  four  days  after  they  are  submitted  to  or 
settled  as  aforesaid,  put  in  his  examination  in  writing ;  and  the 
master  shall,  if  required  by  the  adverse  party  so  to  do,  report, 
with  the  interrogatories  and  examination,  whether,  in  his  opinion, 
the  examination  is  full  and  satisfactory  or  not. 

XXVII.— OF  AFFIDAVITS. 

138.  A  copy  of  every  affidavit  intended  to  be  used  on  the  sept.  8th, 
argument  of  any  special  motion,  or  of  any  other  special  matter 
before  the  court,  of  which  notice  shall  be  necessary,  shall  be 
served(a)  on  the  adverse  party  at  least  [four]  days  before  the  day 

of  argument,  or  shall  be  taken  on  [two]  days'  notice  at  least  of  the  Amended 
time  and  place  of  taking  the  same ;  and  all  affidavits  made  use 
of  in  court  shall  be  first  filed  with  the  clerk  ;  and  no  writ,  order 
or  other  proceeding,  grounded  upon  an  affidavit  or  affidavits, 
shall  be  issued,  filed  or  entered  by  the  clerk,  unless  the  affidavit 
or  affidavits  upon  which  it  shall  be  grounded  shall  have  been 
previously  filed. 

139.  Affidavits  and  petitions  duly  sworn  to,  on  which  orders  isee. 
to  show  cause  may  be  granted,  if  served  as  affidavits,  may  be 
used  on  the  hearing  of  the  order  to  show  cause.(6) 

(a)  On  the  return  of  an  order  to  service  of  the  order  and  the  return- 
show  cause  on  an  original  substantive  day  not  admitting  of  compliance  with 
application  by  petition,  the  respond-  the  rule.  Hatter  of  L.  B.  &  S.  S.  R. 
ent  was,  notwithstanding  the  137th  R.  Co.,  9  C.  E.  Gr.  403. 
rule  of  this  court,  permitted  to  read  [b)  See  P.  &  R.  R.  R.  Co.  v.  Little, 
affidavits  which  had  not  been  served ;  14  Stew.  Eq.  525. 
the  brevity  of  the  time  between  the 


Ixxxiv  EULE8   OF   THE 

May2otb,  140.  Affidavits,   upon  which   are   founded    applications   to 

extend  the  time  for  taking  testimony,  or  for  filing  pleadings  or 
other  papers,  shall  be  served  for  three  days ;  but  counter-affi- 
davits may  be  read  without  notice. 


XXVIII.— OF  NOTICES  OF   MOTIONS. 

1866.  141.  Notices  of  motions  to  dissolve  inj  unctions  shall  be  served 

eight  days ;  of  motions  to  extend  the  time  for  filing  pleadings 
and  other  papers,  three  days ;  and  of  all  other  special  motions, 
five  days ;  and  such  notices  of  said  motions,  respectively,  shall 
be  sufficient,  (a) 

XXIX.— NOTICES   ON    APPLICATION   TO   BE 
MADE   A   PARTY. 

^prii  1st,  142.  If  the  party  shall  be  dead  on  whom  the  petition  or  notice 

of  application  is  required  to  be  served,  by  the  forty- first  section 
of  "An  act  relating  to  the  Court  of  Chancery,"  (Rev.,  p.  110,)(6) 
such  notice  or  petition  may  be  served  either  on  the  executor  or 
administrator  of  such  deceased  party,  or  on  the  solicitor  who 
appeared  for  him  in  his  lifetime ;  or  in  case  there  be  no  such 
executor,  administrator  or  solicitor,  it  may  be  served  by  putting 
up  the  same  in  the  office  of  the  clerk  of  this  court,  and  such  ser- 
vice shall  be  lawful  service. 

(«)  A  notice  is  good,  thongh  dated  money  in   court    {Black  v.  Black,  5 

on  Sunday.     Taylor  v.  Thomas,  1  Gr.  Stew.  Eq.  74). 

Ch.   106.      A    motion   to   appoint   a  (6)  This  section  refers  to   persons 

receiver    is    a    special    motion,   and  who,  after  the   commencement  of  a 

notice  must  be  given.    Tibbals  v.  Sar-  suit  in  chancery,  acquire  such  an  in- 

geayd,  1  McCart.  449.  Notice  must  terest  in  the  subject-matter  thereof 
be  given  of  a  motion  to  open  and  cor-    •  that  they   should    have  been   made 

rect  a  decree   {Litham  v.  Royle,  2  C.  parties,  if   such    interest    had    been 

E.  Or.  40) ;  of  a  motion  to  amend  a  acquired    before   the    said    suit    was 

sworn   answer    {Huffman  v.  Hummer,  brought.     The    court    will    consider 

2  C  E  Or.  269) ;  of  a  motion  to  dis-  only  the  grounds  shown  in  the  peti- 

miss   an   appeal    because   an   appeal  tion   on    the    application.     Davis   v. 

does  not  lie    {Nat.  Bank  v.  Sprague,  Sullivan,  6  Stew.  Eq.  569.     See  Lever- 

6    C.   E.   Gr.  458) ;  of  a  motion  for  ichje  v.  Marsh,  3  Stew.  Eq.  60. 


COURT   OF   CHANCERY.  Ixxxv 


XXX.— OF    REHEARING. 

143.  Every  petition  for  a  rehearing  shall  set  out  concisely  Sept.  sth 
the  special  matter  or  cause  on  which  such  rehearing  is  applied 

for,  and  shall  be  signed  by  two  counsel,  except  in  cases  submitted 
without  argument,  when  it  shall  be  sufficient  if  signed  by  one 
counsel ;  and  if  a  rehearing  is  ordered,  the  party  who  com- 
plains of  the  decree  or  order,  and  applies  to  have  it  corrected, 
shall  be  entitled  to  open  and  close  the  argument. 

144.  A  copy  of  every  petition  for  a  rehearing  shall  be  served  *^|J 
on  the  opposite  party,  with  a  notice  of  presenting  the  same. 


21st, 


145.  If  a  petition  for  rehearing  shall  be  presented  to  the  May2ist 


1822. 


Chancellor  within  ten  days  after  pronouncing  any  final  decree, 
and  a  caveat  against  enrolling  and  signing  the  same  shall  be  filed 
with  the  clerk  of  the  court,  such  final  decree  shall  not  be  enrolled 
and  signed,  or  any  process  issued  thereon,  until  the  said  applica- 
tion shall  be  finally  disposed  of. 

146.  In  all  cases  submitted  by  the  consent  of  parties  without  isss- 
argument,  a  rehearing  shall  be  granted  of  course,  if  either  party 

is  dissatisfied  with  the  decree  or  order  made  in  such  case,  and 
shall  apply  therefor  within  ten  days  after  such  decree  or  order 
shall  be  made. 

147.  No  order  for  a  rehearing  shall  stay  proceedings  on  any  Sept.  sth, 
interlocutory  decree  or  order,  unless  by  the  special  direction  of 

the  court. 

148.  A  rehearing  of  decrees   signed  upon  the  advice  of  a  juneigth, 
Vice  Chancellor,  may  be  had  in  the  same  manner  and  upon  the  ^^'^' 
same  terms  as  in  cases  heard  by  the  Chancellor ;  but  no  rehear- 
ing shall  be  ordered  as  to  conclusions  of  fact,  unless  the  Vice 
Chancellor  who  advised  the  decrees  (unless  otherwise  ordered) 

shall  certify  that,  in  his  opinion,  the  questions  involved,  or 
some  of  them,  should  be  again  heard  upon  the  evidence.(a) 

(a)  Ilaslint/  v.  Bray,  11  Stew.  Eq.  398. 


Ixxxvi  RULES  OF  THE 

XXXI.— OF  APPEALS. 

May  21st,  149.  An  appeal  from  an  interlocutory  decree  or  order  shall 

not  stay  proceedings  in  the  cause  without  an  order  of  this  court, 
or  of  the  Court  of  Appeals,  for  that  purpose  first  had ;  which 
order  shall  be  granted  upon  such  terms  as  the  court  making  it 
may  impose. 

Sept.  8th,  150.  If  the  party  appealing  from  a  final  decree  shall,  within 

ten  days  after  the  filing  of  such  final  decree,  file  his  appeal  with 
the  clerk  of  this  court,  process  shall  not  issue  on  said  decree 
without  the  order  of  this  court  or  of  the  Court  of  Appeals,  (a)  (6) 

May  21st,  J  5^^  The  appeal  to  be  filed  shall  state  shortly  the  parts  of  the 

order  or  decree  complained  of  as  erroneous,  and  shall  be  signed 
by  counsel,  who  shall  state  that  he  conceives  there  is  good  cause 
for  the  appeal ;  and  a  copy  thereof  shall  be  served  on  the 
solicitor  of  the  adverse  party,  if  he  has  prosecuted  or  defended 
by  a  solicitor. 

Sept.  8th,  1 52.  The  party  appealing  from  a  final  decree  shall  present 

his  petition  of  appeal  to  the  Court  of  Appeals,  at  the  next  term 
after  pronouncing  the  said  final  decree,  and  on  the  first  or  second 
day  thereof;  and,  in  default  of  so  doing,  such  appeal  shall  be 
deemed  to  have  been  waived,  and  the  cause  may  proceed  as  if 
no  appeal  had  been  filed. 

(a)  If  the  party  appealing  from  the  to   the   discretion  of  the  court,  and 

final    decree   of    this   court   file   his  will  be  granted  only  upon  good  cause 

appeal   within   ten   days   after    such  shown.    Schenck  v.  Conover,  2  Beas.  31. 

decree  with  the  clerk  of  this  court,  it  (6)  See  Osbornex.  Williams,  13 Stew. 

will  prevent  issuing  process  on  such  Eq.  490. 

decree  without  the  order  of  this  court  It  is  the  notice  of  appeal  filed  in 

or  of  the  Court  of  Appeals  for  that  the  Court  of  Chancery  that  is  the  ap- 

purpose      If  the  appeal  be  not  filed  pellateact  giving  the  Court  of  Appeals 

within  the  time  above   limited,  the  cognizance   of  the   case.     Barton  v. 

motion  to  stay  execution  is  addressed  Long,  18  Stew.  Eq.  160. 


1817. 


COURT  OF   CHANCERY.  Ixxxvii 

XXXri.— OF  SURPLUS   MONEYS  IN   FORE- 
CLOSURE SUITS. 

153.  Petitions  for  surplus  moneys  in  foreclosure  suits  may  Juneigth, 


1871. 


be  presented  at  any  time  after  the  sale,  and  before  the  moneys 
are  paid  into  court ;  and  if  any  order  be  made  for  the  payment 
of  such  surplus  before  the  delivery  of  the  deed,  the  sheriff  or 
other  officer  making  the  sale  shall  accept  the  receipt  or  order  of 
the  person  to  whom  such  surplus,  or  any  part  of  it,  may  be 
ordered  to  be  paid,  as  payment  to  that  extent  of  the  purchase- 
money,  or  may  pay  the  same  to  such  person. 

154.  Any  master,  to  whom  an  application  for  surplus  moneys  Juueigth 


1871. 


1870. 


may  be  referred,  shall  issue  summonses  to  all  defendants  whose 
claims  are  not  directed,  in  the  execution,  to  be  paid  out  of  the 
proceeds  of  sale;  and  he  shall  not  proceed,  unless  such  sum- 
monses shall  have  been  served  five  days,  as  directed  in  the  20th 
rule,  or  the  parties  shall  appear  before  him. 

XXXIII.— APPLICATIONS  FOR  MONEYS  IN  COURT 
FOR  PAYMENT  OF  DEBTS  OF  DECEDENTS. 

155.  Applications  by  executors  or  administrators  for  the  sur-  Apriiist 
plus  moneys  on  foreclosure  sales,  or  for  the  proceeds  of  lands 
sold  in  suits  for  partition,  to  be  applied  by  them  to  the  payment 
of  the  debts  of  a  decedent  represented  by  them,  shall  be  made 
by  petition;  the  petition  shall  state  the  time  of  the  death  of 
the  decedent,  the  date  of  the  sheriff's  or  master's  deed  upon 
which  such  moneys  were  received,  whether  any  of  the  heirs 
or  devisees  have  aliened  or  encumbered  their  estate  in  the  lands 
sold,  in  whole  or  in  part,  or  their  interest  in  the  proceeds  of  the 
sale  thereof,  or  any  part  of  the  same,  and  when,  and  what  part 
and  to  whom ;  and  also  whether  any  married  woman  has  an 
inchoate  right  of  dower  in  said  suplus  moneys,  or  any  part 
thereof.  There  shall  be  annexed  to  the  petition  a  true  account 
of  the  personal  estate  of  the  decedent  that  has  come  to  the 
hands  or  knowledge  of  the  petitioner,  stating  the  amount  of  the 


IxXXVlU  RULES   OF  THE 

same  which  has  been  collected  or  realized,  and  what  part,  if  any, 
has  not  been  collected  or  realized,  and  specifying  what  parts  are 
deemed  good,  doubtful  or  desperate ;  such  account  shall  also 
state  how  the  amount  realized  has  been  disposed  of  and  how 
much  remains  on  hand ;  also  the  debts  due  or  claimed  to  be  due 
from  the  decedent,  and  to  whom  owing,  and  what  part  of  such 
debts  are  disputed  by  the  petitioner;  and  such  petition  and 
account  shall  be  verified  by  oath. 

April  1st,  1 56.  Such  petition  shall  be  filed,  and  notice  of  the  application 

shall  be  given  for  ten  days  before  the  same  is  made,  to  all  per- 
sons entitled  to  such  moneys,  or  any  part  thereof,  if  not  required 
for  the  payment  of  debts ;  such  notice,  besides  the  time  and  place 
of  application,  shall  state  the  amount  of  the  personal  estate  that 
has  come  to  the  hands  of  the  petitioner,  the  amount  paid  out  for 
debts  and  expenses,  and  the  amount  of  debts  paid  and  claimed 
to  be  due  and  unpaid ;  such  notice  may  be  served  upon  persons 
who  reside  out  of  the  state,  and  have  not  appeared  in  the  suit, 
by  setting  up  a  copy  in  the  office  of  the  clerk  of  this  court,  and 
also  by  mailing  a  copy  to  the  post-office  address  of  such  person, 
if  the  same  be  known. 

April  1st,  157.  Unless  the  consent  of  all  so  interested  in  such  moneys 

^  '"■  shall  be  given  to  the  payment  of  the  same,  or  a  sufficient  part 

thereof,  to  the  petitioner,  it  shall  be  referred  to  a  special  master 
to  ascertain  and  report  upon  the  truth  of  the  matters  in  such 
petition  and  account;  and  also  how  much  will  be  required  for 
the  payment  of  the  debts  of  decedent  above  the  amount  realized 
and  likely  to  be  realized  from  the  personal  estate;  and  also 
whether  any  part  of  the  lands  sold,  or  of  the  proceeds  of  the  sale 
thereof,  has  been  aliened  by  the  heirs  or  devisees,  so  as  by  law  to 
be  free  from  the  lien  for  the  debts  of  the  decedent,  and  what 
part,  and  when  and  to  whom  aliened;  and  the  summons  to 
attend  such  hearing  before  the  master  shall  not  be  required  to 
be  served  on  any  person,  except  such  as  may  have  entered  an 
appearance  on  the  notice  of  the  application. 

April  1st,  158.  No  order  shall  be  made  for  the  payment  of  such  moneys 

unless  it  appear  that  such  executor  or  administrator  shall  have 


COURT  OF   CHANCERY. 


administered,  as  nearly  as  practicable,  all  the  moneys  received 
by  him,  and  used  due  diligence  to  collect  such  as  have  not  come 
to  his  hands. 

159.  No  moneys  shall  be  paid  on  such  application  until  the  April  ist 


1870. 


petitioner  shall  have  filed  in  this  court  his  bond  to  the  Ordinary, 
in  double  the  sum  directed  to  be  paid,  with  two  sufl&cient  sure- 
ties residents  of  this  state,  with  condition  similar  to  that  pre- 
scribed by  law  for  bonds  upon  orders  of  the  Orphans'  Court  for 
the  sale  of  lands  for  the  payment  of  debts.(a) 

XXXIV.— OF  SUITS   IN  WHICH   THE   CHANCEL- 
LOR  MAY   BE  INTERESTED. 

160.  In  any  suit  commenced  in  which  the  Chancellor  may  be  April  ist 


1870. 


a  party,  or  may  be  interested,  an  order  shall  be  made  requesting 
a  Vice  Chancellor  to  hear  the  same  and  all  proceedings  therein, 
and  to  advise  the  Chancellor  what  orders  and  decree  to  make 
therein  ;  and  in  the  process,  pleadings,  orders  and  other  proceed- 
ing in  suits  to  which  he  may  be  a  party,  the  Chancellor,  when 
referred  to  as  such,  shall  be  designated  by  his  name  of  office  only. 

XXXV.— OF  INTEREST  ON   MONEYS  IN   COURT. 

161.  All  sums  exceeding  two  hundred  dollars,  which  shall  be  oct.  isth, 
deposited  and  remain  in  the  court  for  ten  days,  and  all  sums  not 
exceeding  two  hundred  dollars,  which  shall  be  deposited  and 
remain  in  court  for  thirty  days,  shall  be  allowed  interest  at  the 

rate  paid  by  the  depository  of  the  funds  of  the  court  at  the  time, 
for  the  full  period  for  which  such  funds  shall  remain  in  court. 

XXXVL— OF  APPOINTMENT  OF  TRUSTEES. 

162.  Applications  to  appoint  or  substitute  trustees  may  be  isee. 
made  by  bill  or  petition,  and  when  made  by  petition  shall  set 
forth  the  trust  sufficiently  to  show  who  are  interested  in  the  same 

(a)  Rev.,  "Orphans'  Court,"  ^  75, 


XC  RULES   OF   THE 

as  cestuis  que  trust,  vested  or  contingent,  and  as  trustees ;  and 
notice  shall  be  given  to  each  person  so  interested  of  the  time, 
place  and  object  of  such  application,  by  serving  the  sarae  in  per- 
son or  at  his  residence  ten  days  before  such  application ;  and  if 
the  party  reside  out  of  the  state,  by  mailing  the  same,  prepaid, 
directed  to  such  party  at  his  post-office  address,  so  that  the  same 
would  reach  him,  by  the  usual  course  of  the  mail,  twenty  days 
before  such  time;  and  in  case  such  party  shall  be  an  infant, 
such  notice  shall  be  served  on  his  or  her  parent  or  guardian, 
or  in  such  other  manner  as  the  Chancellor,  on  application., 
may  direct. 

XXXyil.— OF   SUITS   FOR   DIVORCE. 

April  1st,  163.  In  suits  for  divorce  on  account  of  adultery,  the  bill  or 

1870 

petition  shall  state  the  name  of  the  person  with  whom  the  adul- 
tery was  committed,  if  known ;  and  if  not  known,  shall  set 
forth  the  description  of  the  person,  or  such  designation  of  the 
time,  place  and  circumstances  under  which  the  act  or  series  of 
acts  were  committed,  as  will  enable  the  defendant  and  the  court 
to  distinguish  and  individuate  the  particular  oflFence  or  offences 
intended  to  be  charged  ;  and  no  reference  shall  be  ordered  in 
a  suit  in  which  the  ofience  is  not  so  designated ;  and  if  the 
name  of  the  person  is  stated  to  be  unknown,  it  must  be  shown 
on  the  reference  that  it  was  not  known  at  the  commencement  of 
the  suit. (a) 


1870. 


April  1st,  164.  On  a  reference  in  a  suit  for  divorce,  the  master  shall 

take  down  and  report  the  testimony  in  such  manner  that  it 
may  appear  whether  the  facts  sworn  to  are  within  the  personal 
knowledge  of  the  witness,  or  are  from  hearsay  or  reputation ; 

(a)  A  time  certain  as  to  when  an  such    case    an    allegation    that    the 

alleged    act   of    adultery   was    com-  ofiense  was    committed  on   difierent 

mitted  need  not  be  stated  in  a  bill  days  in  specified  months  of  specified 

for   divorce  when   the  name  of  the  years    will    be    sufficient.     Black   x. 

person  with  whom,  and  the  place  at  Black,   11    C.   E.    Gr.  431  ;  S.  C,  on 

which  the  ofiense  is  alleged  to  have  appeal,  12  C.  E.  Gr.  664. 
been   committed   are   set   forth.      In 


COURT   OF   CHANCERY.  XCl 

and  the  master  shall  not  report  any  evidence  from  hearsay  or 
reputation  which  shall  appear  to  him  to  be  illegal,  unless  the 
complainant  or  his  counsel  insists  that  the  same  is  legal ;  and 
such  master  shall  report  distinctly  what  facts  alleged  as  the 
ground  for  divorce  are  proved  to  his  satisfaction,  and  also  what 
facts  necessary  to  give  jurisdiction  are  so  proved;  and  in  suits 
based  on  desertion,  shall  examine  into  and  report  the  facts  and 
circumstances  under  which  the  desertion  took  place,  and  the 
reasons  which  caused  or  provoked  it,  if  the  same  can  be  ascer- 
tained. 

165.  No  decree  in  an  ex  parte  divorce  case  shall  be  signed  Oct.  21st, 
until  after  the  master's  report  shall  have  been  on  file  thirty  days. 


XXXVIII.— OF  PARTITION. 

166.  Where  a  bill  is  filed  for  partition,  and  a  decree  pro  con-  isss. 
fesso  is  taken,  there  shall  be  a  reference  to  a  special  master  to 
report  as  to  the  rights  of  the  respective  parties  in  the  premises, 
and  to  ascertain  and  report  whether,  in  his  opinion,  a  partition 
of  the  land  or  real  estate  can  be  made  without  great  prejudice  to 
the  owners  of  the  same;  which  report  shall  be  made  to  the 
Chancellor,  at  the  time  and  place  named  in  the  order  of  refer- 
ence, at  which  time  and  place  any  party  interested  may  appear 
and  make  objections  to  the  report ;  but  no  exceptions  in  writing 
shall  be  filed  to  the  same.  If  the  master  report  that  a  partition 
cannot  be  made  without  great  prejudice  to  the  owners  of  the 
property,  and  the  report  is  confirmed,  then  an  order  shall  be 
made  directing  a  sale  by  a  master ;  if  the  master  report  that,  in 
his  opinion,  a  partition  can  be  made  without  prejudice,  &c.,  then 
the  Chancellor  shall  appoint  three  persons  as  commissioners  to 
make  partition  according  to  law ;  and  all  further  proceedings, 
as  to  such  sale  or  partition,  shall  be  according  to  the  practice  of 
the  court  in  like  cases  heretofore.  In  cases  of  sale,  the  master  Amended 
shall  be  allowed  the  same  fees  [that  by  law  are  allowed  to  a  iss?.' 
sherifi"  on  sale  by  execution.] 


XCll  RULES   OF   THE 

1866.  167.  When  a  married  woman,  one  of  the  parties  in  partition, 

owns  an  undivided  share  in  her  own  right,  and  the  title  has  be- 
come vested  in  her,  or  the  coverture  commenced  after  July 
fourth,  eighteen  hundred  and  fifty-two,  the  title  of  such  share  shall 
be  stated  in  the  report  of  the  master  ascertaining  the  rights  of  the 
parties  and  in  the  decree  thereon,  to  be  in  such  married  woman 
and  not  in  her  and  her  husband  ;  and  if  in  such  case  a  sale  be 
made,  her  share  of  the  proceeds  of  sale  shall  be  ordered  to  be 
paid  to  her ;  and  in  all  other  cases  the  title  shall  be  stated  to  be 
in  her  and  her  husband  in  her  right,  and  their  share  of  the  pro- 
ceeds be  ordered  to  be  paid  to  both. 


May  20th, 
1879. 


168.  In  partition  suits,  where  any  person  is  entitled  to  an 
estate  in  dower  or  by  the  curtesy,  in  the  whole  or  any  part  or 
share  of  the  premises,  and  the  master  shall  report  that  said  prem- 
ises should  be  sold  free  and  discharged  of  such  estate,  no  decree 
for  the  sale  of  said  premises  free  and  discharged  from  such  dower 
or  curtesy  shall  be  made  until  notice  shall  have  been  given  to  the 
party  entitled  to  the  said  estate,  of  the  intended  application  for 
the  sale  of  said  lands  free  and  discharged  as  aforesaid.  Such 
notice  shall  be  served  personally  on  said  party  at  least  twenty 
days  prior  to  such  application,  or  be  published  in  one  of  the 
newspapers  printed  and  published  in  the  county  where  such  lands 
are  situate,  for  at  least  four  weeks  next  preceding  the  time  of 
making  such  application  ;  if  published,  a  copy  thereof  shall  be 
mailed  prepaid  to  such  party,  if  his  or  her  residence  can  be 
ascertained. 

May 20th,  1Q9.  The  party  entitled  to  such  estate  may  waive  the  notice 

herein  required,  by  filing  his  or  her  consent,  or  the  consent  of  his 
or  her  solicitor,  to  such  sale,  provided  such  signature  of  the  party 
be  verified  by  affidavit. 


1868. 


170.  When  an  estate  in  dower  or  by  curtesy  in  any  lands  sold 
by  order  of  the  court  in  proceedings  for  partition  shall,  by  order 
of  the  court,  be  sold  with  such  lands,  the  sum  to  be  paid  or  in- 
vested in  lieu  of  such  dower  or  curtesy  shall  be  ascertained  in  the 
same  manner  as  in  like  cases  on  sale  of  infants'  lands. 


COURT  OF   CHANCERY.  xciii 

1868. 


171.  In  cases  of  partition,  the  master  who  may  make  the  re- 
port whether  partition  can  be  made  without  great  prejudice, 
shall  in  no  case  be  appointed  to  make  sale  of  the  premises. 


XXXIX.— OF   IDIOTS,  LUNATICS  AND 
HABITUAL  DRUNKARDS. 

172.  On  all  applications  to  obtain  a  commission  of  idiocy,  Sept.  8th, 
lunacy  or  habitual  drunkenness,  the  petition  shall  be  accompa-  ^^"' 
nied  by  the  affidavits  of  two  or  more  persons,  evincing  the  lunacy, 
idiocy  or  habitual  drunkenness  of  the  party  against  whom  the 
commission  is  prayed,  and  the  person's  incapacity  to  manage  his 
or  her  own  affairs ;  and  the  commissioners  and  jury  shall  have 
a  right  to  examine  the  idiot,  lunatic  or  habitual  drunkard  in 
person  before  them,  without  a  special  order  for  that  purpose. 


1879. 


173.  Ten  days'  notice  of  the  taking  of  the  inquisition  shall  be  May  20th, 
given  to  the  person  who  is  the  subject  thereof;  the  Chancellor, 
however,  may,  for  good  reasons,  allow  shorter  notice,  or  dispense 
with  notice  altogether.  Proof  of  the  giving  of  the  notice  shall 
be  filed  with  the  inquisition,  and  in  case  less  than  ten  days' 
notice  has  been  given,  or  no  notice  at  all,  the  reasons  therefor 
shall  appear  by  affidavit,  to  be  filed  with  the  inquisition. 


1817. 


174,  In  all  cases  where  a  commission  of  idiocy,  lunacy  or  sept.  sth, 
habitual  drunkenness  shall  issue,  it  shall  be  executed,  and  the 
inquisition  returned  to  the  Chancellor,  within  two  months  after 
making  the  order  for  issuing  of  the  commission,  or  the  commis- 
sion shall  be  considered  as  superseded,  and  no  proceedings  shall 
take  place  thereon  without  the  further  order  of  the  court ;  and 
no  decree  shall  be  entered  upon  any  inquisition,  and  signed, 
until  the  expiration  of  ten  days  after  the  inquisition  shall  be 
returned  into  the  office. 


XCIV  RULES  OF   THE 

XL.— SALE  OF  LAND  OF  IDIOTS,   LUNATICS, 
AND  HABITUAL  DRUNKARDS. 

May  20th,  175.  The  general  guardian  of  an  idiot,  lunatic  or  habitual 


1879. 


drunkard  may  present  a  petition  to  the  Chancellor,  stating  the 
residence  of  the  idiot,  lunatic  or  drunkard,  the  situation  and 
value  of  the  real  estate  proposed  to  be  sold  or  disposed  of,  with 
a  description  thereof,  and  that  the  interest  of  such  idiot,  lunatic 
or  drunkard  requires  that  said  lands  should  be  sold  or  disposed 
of,  and  stating  also  the  particular  reasons  which  render  such  sale 
necessary  or  proper. 

May:20th,  176.  The  Security  required  on  a  sale  of  the  real  estate  of  an 

idiot,  lunatic  or  habitual  drunkard,  shall  be  a  bond  of  the  gen- 
eral guardian  to  the  Ordinary  of  the  State  of  New  Jersey,  and 
his  successors,  with  two  sufficient  sureties,  in  a  penalty  of  double 
the  value  of  the  premises,  each  of  which  sureties  shall  be  worth 
the  penalty  of  the  bond  over  and  above  all  debts ;  or  a  similar 
bond  of  the  guardian  only,  secured  by  a  mortgage  on  unencum- 
bered real  estate  of  the  value  of  the  penalty  of  such  bond,  not 
estimating  the  improvements  thereon. 

May  20th,  177.  Upou  the  petition  being  presented  to  the  court,  if  it 

satisfactorily  appear  that  there  is  reasonable  ground  for  the  appli- 
cation, there  shall  be  a  reference  to  a  special  master  to  ascertain 
and  report  what  is  the  actual  value  of  the  real  estate  proposed  to 
be  sold  or  disposed  of,  and  of  each  separate  lot  or  parcel  thereof; 
the  sufficiency  of  the  sureties  offered  by  the  guardian,  and 
whether  each  is  worth  double  the  value  of  the  real  estate  pro- 
posed to  be  sold  ;  or  whether  the  land  proposed  to  be  mortgaged, 
by  way  of  security,  is  unencumbered  and  of  the  requisite  value, 
according  to  the  preceding  rule ;  and  what  should  be  the  penalty 
of  the  guardian's  bond  in  conformity  to  that  rule ;  and  also  to 
ascertain  the  truth  of  the  facts  stated  in  the  petition ;  and  whether 
the  interest  of  the  idiot,  lunatic  or  drunkard  (as  the  case  may 
be)  requires  that  said  real  estate,  or  any  part  thereof,  should  be 
sold  or  disposed  of,  and  the  particular  reasons  upon  which  his 


COURT  OF   CHANCERY.  XCV 

opinion  is  founded,  and  the  terms  and  conditions  upon  which  it 
should  be  sold  or  disposed  of,  and  fixing  a  price  below  which  it 
should  not  be  sold. 

178.  The  guardian  shall,  at  or  before  the  time  of  making  his  May  20th, 
report  of  sale  of  said  real  estate,  file  with  the  clerk  of  this  court  "'^" 
the  bond  required  by  the  176th  rule,  approved  as  to  its  form  and 
manner  of  execution  by  the  master,  signified  by  his  certificate 
endorsed  thereon. 


XLI.— OF  GUARDIANS'  SALES  OF  INFANTS' 
ESTATES. 

179.  The  general  guardian  of  the  infant,  if  he  have  any,  and  1853. 
if  there  be  none,  some  relative  or  friend,  may  present  a  petition 

to  the  Chancellor,  stating  the  age  and  residence  of  the  infant, 
the  situation  and  value  of  the  real  estate  proposed  to  be  sold, 
with  a  description  of  the  same,  and  the  particular  reasons  which 
render  a  sale  of  the  premises  necessary  or  proper,  and  praying 
that  a  guardian  may  be  appointed  to  sell  the  same ;  the  petition 
shall  also  state  the  name  and  residence  of  the  person  proposed 
as  such  guardian,  the  relationship,  if  any,  which  he  bears  to  the 
infant,  and  the  security  proposed  to  be  given. 

180.  The  security  required  on  the  sale  of  the  real  estate  of  an  1853 
infant  shall  be  a  bond  of  the  guardian,  with  two  suflScient  sure- 
ties, in  a  penalty  of  double  the  value  of  the  interest  of  such 
infant  in  the  premises,  each  of  which  sureties  shall  be  worth  the 
penalty  of  the  bond  over  and  above  all  debts ;  or  a  similar  bond 

of  the  guardian  only,  secured  by  a  mortgage  on  unencumbered 
real  estate  of  the  value  of  the  penalty  of  such  bond,  not  esti- 
mating the  improvements  thereon. 

181.  Upon  the  petition  being  presented  to  the  court,  if  it  im. 
satisfactorily  appear  that  there  is  a  reasonable  ground  for  the 
application,  there  shall  be  a  reference  to  a  special  master  to  ascer- 
tain [the  truth  of  the  facts  stated  in  the  petition ;  and  whether  Amended 
the  interest  of  the  infant  requires  that  said  real  estate,  or  any  im.  ^°'''' 


XCVl  RULES   OF   THE 

part  thereof,  should  be  sold,  and  what  part,  and  the  particular 
reasons  upon  which  his  opinion  is  founded ;  and  to  ascertain  also 
the  value  of  the  property  proposed  to  be  sold,  and  of  each 
separate  lot  or  parcel  thereof,  and  the  terms  and  conditions  upon 
which  it  should  be  sold,  and  fixing  a  price  below  which  it  should 
not  be  sold ;  and  whether,  in  his  opinion,  said  premises  will 
increase  in  value  during  the  minority  of  said  infant,  and  to  what 
extent.  And  if  he  shall  ascertain  that  the  interest  of  the  infant 
requires  that  the  said  real  estate,  or  any  part  thereof,  be  sold, 
then  to  ascertain  and  report]  whether  the  person  proposed  as  a 
guardian  is  a  suitable  and  proper  person  for  that  purpose; 
what  is  the  age  of  the  infant,  the  actual  value  of  the  infant's 
interest  in  the  real  estate  proposed  to  be  sold,  the  sufficiency  of 
the  sureties  oifered  by  the  guardian,  and  whether  each  is  worth 
double  the  value  of  the  infant's  interest  in  the  real  estate  pro- 
posed to  be  sold,  over  and  above  all  debts ;  or  whether  the  land 
proposed  to  be  mortgaged,  by  way  of  security,  is  unencumbered, 
and  of  the  requisite  value,  according  to  the  preceding  rule ;  and 
what  should  be  the  penalty  of  the  guardian's  bond,  in  conform- 
ity to  that  rule,  to  be  given  to  each  infant.  And  if  the  master 
is  not  satisfied  with  the  person  nominated  as  guardian,  or  with 
the  security  proposed,  he  may  name  a  suitable  person  as  guardian, 
and  state  what  further  or  other  security  should  be  given. 

1853.  182.  On  the  coming  in  of  the  report  of  the  master,  applica- 

tion may  be  made  for  an  order  appointing  a  guardian  for  the 
purposes  of  the  application,  on  his  executing  and  filing  with  the 
clerk  the  requisite  security,  approved  as  to  its  form  and  manner 
of  execution  by  the  master,  signified  by  his  certificate  endorsed 

Amended     thcrcon ;  [and  also  directing  a  sale  of  the  property.] 


1879. 
1853. 


183.  If  any  person  entitled  to  dower  in  the  premises,  or  to 
any  estate  for  life  or  years  therein,  devised  to  a  widow  in  lieu 
of  dower,  is  willing  to  join  in  the  sale  and  release  of  such  estate, 
upon  receiving,  in  lieu  thereof,  such  sum  in  gross  as  shall  be 
approved  by  the  Chancellor,  or  upon  the  investment  of  such 
sum  as  the  Chancellor  may  deem  reasonable,  in  such  manner 
that  the  interest  shall  be  paid  to  the  person  entitled  to  such  estate 


COURT   OF   CHANCERY.  XCVU 

for  the  duration  thereof;  or  if  any  person  entitled  to  curtesy  in 
the  premises  shall  be  willing  to  join  in  the  sale,  upon  receiving 
such  sum  in  gross  as  shall  be  approved  by  the  Chancellor ;  and 
such  person  shall,  before  the  sale,  sign  and  deliver  to  the  guar- 
dian a  consent  in  writing,  to  join  in  the  sale  and  release  of  such 
estate  on  the  terms  above  specified,  or  either  of  them,  then  the 
guardian  shall  sell  the  lands  free  from  such  estate. 

1 84.  And  if  any  person  entitled  to  such  dower  or  estate  shall  i853. 
have  agreed  to  join  in  the  sale  and  accept  such  sum  in  gross,  or 
investment  in  lieu  thereof,  then,  upon  such  sale,  it  shall  be 
referred  to  a  special  master  to  ascertain  and  report  the  clear  yearly 
income,  above  insurance,  repairs  and  taxes,  that  such  tenant  for 
life  could  realize  from  the  whole  premises  during  his  or  her  life, 

if  owner  of  the  whole  for  life ;  and  in  such  calculation,  allow- 
ance shall  be  made  for  all  repairs  necessary  to  keep  the  premises 
in  as  good  condition  as  at  the  sale,  including  the  renewal  of  any 
part  of  the  buildings  thereon  that  may,  by  ordinary  wear  and 
tear,  or  from  decay,  require  renewal ;  and  from  said  income  to 
ascertain  and  report  the  gross  value  of  such  dower  or  other 
estate,  on  the  principle  of  life  annuities,  to  be  calculated  on  the 
basis  of  the  table  annexed  to  the  rules  of  this  court ;(«)  and  also 
further  to  ascertain  the  gross  value  of  such  dower  or  estate  from 
the  net  proceeds  of  the  sale  above  costs  and  expenses,  to  be  cal- 
culated on  the  basis  of  said  table ;  and  also,  in  case  such  consent 
is  to  accept  a  gross  sum,  to  inquire  into  and  report  the  condition 
as  to  health  of  such  dowress  or  life  tenant,  and  whether  he  or 
she  has  an  average  expectancy  of  life ;  and  if  not,  what  deduc- 
tion should  be  made  from  such  gross  sum  on  that  account. 

185.  The  gross  sum  allowed  in  lieu  of  dower  or  other  estate  1853. 
so  sold,  shall  not  be  greater  than  that  calculated  on  the  net  pro- 
ceeds of  the  sale ;  and  when  the  clear  yearly  income  shall  be 

less  than  the  interest  on  the  net  proceeds  of  sale  at  ffivel  per  cent.,  Amended 

May  12th 

the  gross  sum  to  be  allowed  shall  be  calculated,  by  adding  to  isos. 
the  amount  calculated  from  the  clear  yearly  income — in  cases  of 

(a)  See  page  cxii. 


XCVlll  EULES  OF  THE 

dower  one-half,  and  in  other  cases  one-fourth,  of  the  excess  of 
the  amount  calculated  from  the  net  proceeds  of  sale  over  the 
amount  calculated  from  the  clear  yearly  income.  Having  made 
such  calculation  and  ascertained  the  result,  the  master  is  to 
report,  irrespective  of  that  result,  what  is,  in  his  opinion  and 
under  all  the  circumstances  of  the  case,  a  reasonable  satisfaction 
for  said  dower  or  other  estate.(a) 


1853. 


186.  In  the  order  approving  the  sale  and  directing  a  convey- 
ance to  be  executed,  may  be  embraced  the  directions  and  order 
of  the  Chancellor  for  the  application  and  disposition  of  the  pro- 
ceeds of  the  sale,  and  for  the  investment  of  the  surplus  thereof. 

J8^°-2otii,  187.  The  guardian  shall  be  entitled  to  receive  on  all  sales  of 

such  infants'  estates  the  following  percentage : 

1.  On  all  sums  not  over  one  thousand  dollars,  three  per  cent, 
on  the  amount  of  sales. 

2.  If  over  one  thousand  dollars,  and  not  exceeding  three 
thousand  dollars,  two  per  cent,  on  such  excess ;  and 

3.  If  over  three  thousand  dollars,  one  per  cent,  on  such 
excess. 


July  1st, 


188.  The  proceedings  under  the  supplement  (approved  in 
1886)  to  the  act  entitled  "An  act  relative  to  guardians  and  the 
estates  of  minors,"  shall  be  begun  by  petition  of  the  guardian, 
and  shall  be  in  conformity  with  the  proceedings  established  by 
statute  and  by  the  rules  and  practice  of  this  court  for  the  sale  of 
infants'  land,  so  far  as  such  last-mentioned  proceedings  may  be 
applicable  thereto.  There  shall  be  a  reference  to  a  special 
master  as  to  the  merits  of  the  application,  and  in  case  the  appli- 
cation be  to  mortgage  the  infants'  land,  as  to  the  fitness  of  the 
guardian  and  the  amount  of  bonds  to  be  given  and  the  suffi- 

(a)    In     ascertaining    the    proper  of  the  result  of  the  application  of  the 

sum  to  be  paid  in  gross  to  a  tenant  in  rules  to  the  case  in  hand,  the  court 

dower  or  by  the  curtesy,  in  commu-  should  determine  what,  in  that  case, 

tation  of  such  interest,  the  184th  and  imder  the  circumstances  thereof,  is  a 

185th  rules  of  the  Court  of  Chancery  reasonable  sum  to  be  paid  in  commu- 

on  the  subject  should  not  be  taken  as  tation.     Cronkright  v.  Haulenbeek,  IC 

an  absolute  guide;  but,  irrespective  C.  E.  Qr.  51S. 


COURT  OP   CHANCERY.  XCIX 

ciency  of  the  sureties  offered.  When  the  application  is  to  mort- 
gage, the  guardian  is  to  be  required  to  give  bond  in  double  the 
amount  of  the  money  to  be  borrowed,  with  sureties  and  condi- 
tion, as  provided  by  the  act  entitled  "An  act  relative  to  the  sale 
and  disposition  of  the  real  estate  of  infants."  The  infant  whose 
land  is  to  be  mortgaged  or  exchanged,  shall,  as  to  the  property 
and  the  money  borrowed  on  mortgage  thereof,  or  the  property 
received  in  exchange,  be  regarded  as  a  ward  of  this  court. 


XLII.— OF  DUTIES  OF   GUARDIANS  AND 
RECEIVERS. 

189.  Every  guardian  and  receiver  appointed  by  this  court  Aug.  2ist, 
shall,  within  six  months  after  his  appointment,  and  every  special 
guardian  for  the  sale  of  an  infant's  estate  shall,  within    six 
months  after  the  order  confirming  a  sale  of  the  estate,  or  any 

part  thereof,  file  in  the  office  of  the  clerk  of  this  court,  a  just 
and  true  inventory,  under  oath,  of  the  whole  estate  committed 
to  his  care  or  guardianship,  and  of  the  manner  in  which  the 
funds  under  his  care  or  control,  belonging  to  the  estate,  are 
invested,  stating  the  income  and  profits  of  such  estate,  and  the 
debts  contracted  and  expenditures  by  him  on  account  thereof. 
And  he  shall  annually  thereafter,  so  long  as  any  part  of  the 
estate,  or  of  the  income  or  proceeds  thereof,  remains  in  his  hands 
or  under  his  care  or  control,  file  in  the  said  clerk's  office  an 
inventory  and  account,  under  oath,  of  his  guardianship  or  trust, 
and  of  the  amount  remaining  in  his  hands  or  invested  by  him, 
and  of  the  manner  in  which  the  same  is  secured  or  invested. 

190.  It  shall  be  the  duty  of  the  clerk,  on  the  first  day  of  Aug.  21st, 
every  stated  term  of  the  court,  to  present  to  the  Chancellor  a  ^^^*' 
list  of  all  guardians  and  receivers,  (and  of  all  persons  who  have 
received  money  for  investment  under  any  order  of  this  court,) 

who  have  neglected  to  comply  with  the  duties  prescribed  by  the 
next  preceding  rule  for  more  than  three  months  after  the  times 
limited  for  the  performance  thereof,  to  the  end  that  the  Chan- 
cellor may  make  such  order  respecting  such  delinquents  as  may 


1855. 


RULES   OF  THE 

be  just.  And  the  inventories  and  accounts  of  such  guardians 
and  receivers  shall,  from  time  to  time,  in  the  discretion  of  the 
Chancellor,  be  referred  to  one  of  the  special  masters  of  the  court, 
who  shall  report,  at  the  next  term  of  the  court  after  such  refer- 
ence, whether  such  accounts  appear  to  have  been  correctly  kept, 
and  whether  the  funds  are  safely  invested  or  secured.  And  the 
said  master  may  summon  such  guardian  or  receiver  to  appear 
before  him,  and  examine  him  under  oath  touching  his  account 
or  inventory ;  and  he  may  summon  and  examine  other  wit- 
nesses touching  the  matters  submitted  to  him,  if  he  shall  see 
proper  to  do  so. 

191.  It  shall  be  the  duty  of  the  master  specially  designated  for 
the  purpose,  in  the  month  of  January  in  every  year,  to  examine 
the  inventories  and  accounts  of  the  guardians  and  receivers  which 
have  been  filed  with  the  clerk  for  the  preceding  year,  and  report 
to  the  court,  at  its  next  term,  whether  such  accounts  appear  to 
have  been  correctly  kept ;  whether  there  has  been  any  waste  or 
misapplication  of  the  funds,  and  whether  the  same  are  properly 
and  safely  invested  or  secured,  so  far  as  he  can  ascertain  the  same 
from  the  examination  of  such  accounts  and  inventories  on  file. 
If  such  master  finds  the  account  or  inventory  of  any  guardian  or 
receiver  erroneous  or  imperfect,  or  discovers  or  suspects  that  the 
property  has  been  misapplied  or  wasted,  or  that  the  funds  are 
unsafe  or  improperly  invested,  he  shall  summon  the  guardian  or 
receiver  to  appear  before  him  to  correct  the  account  or  inventory, 
or  to  give  such  explanations,  on  oath,  as  may  be  deemed  neces- 
sary. The  master  may  also  summon  and  examine  witnesses  on 
oath,  if  he  shall  deem  it  proper,  in  relation  to  such  inventory  or 
account,  or  the  situation  of  the  funds. 

XLIII.— OF    NE    EXEAT. 

Dec.  23d,  192.  When  a  defendant  shall  be  arrested  on  a  writ  of  ne 

exeat,  the  sheriff  may,  in  lieu  of  the  bond  heretofore  used  aad 
required,  take  a  bond  in  the  sum  endorsed  on  the  writ,  with 
sureties  as  required  by  law,  with  condition  that  the  defendant 
shall  cause  his  appearance  to  be  entered  in  the  suit,  and  continue 


1871 


COURT   OF   CHANCERY.  ci 


such  appearance  by  a  solicitor  of  this  court,  residing  in  the  state  ; 
and  shall  at  all  times  render  himself  amenable  to  the  orders  and 
process  of  this  court  pending  the  suit,  and  to  such  process  as  shall 
be  issued  to  compel  the  performance  of  the  final  decree  therein, 
and  will  appear  before  this  court,  or  any  officer  thereof,  when  so 
required  by  the  order  of  this  court. 


XLIV.— OF  THE  VICE  CHANCELLORS  AND 
ADVISORY  MASTERS. 


June  19th, 
1871. 


193.  Any  cause  or  other  matter  may  be  referred  to  a  Vice 
Chancellor  [or  advisory  master],  at  the  discretion  of  the  Chan-  i™rii°S 
cellor.     Application  for  such  reference,  if  not   made  by  both  ^*^^" 
parties,  may  be  in  presence  of,  or  upon  five  days'  notice  to  the 
adverse  party  or  his  solicitor. 

194.  When  a  cause  shall  be  referred  to  a  Vice  Chancellor,   Junemb, 
all  proceedings  in  it  to  the  final  decree  shall  be  had  before  him. 

195.  When  a  cause  referred  to  a  Vice  Chancellor  shall  be  at  J^^^^eioth, 
issue,  either  party  may,  upon  five  days'  notice  to  the  other  party  fgyf  °*^^*^ 
or  parties,  apply  to  the  Vice  Chancellor  to  whom  the  cause  is 
referred  to  fix  a  time  and  place  for  the  hearing  thereof;  and 

upon  such  application,  such  Vice  Chancellor  may  designate  such 
time  and  place ;  and  upon  [fifteen]  days'  notice,  in  writing,  of  the  Amended 
time  and  place  so  designated,  given  by  either  party  to  the  other  i89^. 
or  others,  the  cause  may  be  heard. 

196.  At  the  time  for  which  notice  is  given  or  designated  for  Junewth, 
hearing,  both  parties  shall  attend  with  their  witnesses  and  other 
evidence,  and  the  cause  shall  proceed,  as  at  a  trial  at  law  before 

a  jury,  by  the  oral  examinations  of  the  witnesses  on  both  sides 
continuously,  until  all  the  evidence  has  been  produced  and 
closed ;  the  party  holding  the  affirmative  first  producing  all  his 
evidence,  and,  after  resting,  he  shall  be  permitted  to  produce  evi- 
dence in  rebuttal  only  ;  but  the  Vice  Chancellor  may,  in  his  dis- 
cretion, reserve  to  either  party  the  right  to  produce  one  or  more 


Cll 


RULES   OF   THE 


June  19th, 
1871. 


June  19th, 
1871. 


June  19th, 
1871. 


witnesses,  who  shall  be  named,  to  be  examined  orally  or  by  de- 
position at  a  future  day.  But  such  right  shall  not  be  granted, 
unless  the  Vice  Chancellor  be  satisfied  that  due  diligence  has 
been  used  to  procure  the  attendance  or  deposition  of  such  wit- 
ness before  the  trial,  nor  unless  it  be  fairly  disclosed  what  is  ex- 
pected to  be  proved  by  such  witness,  and  such  evidence  shall 
appear  to  be  material,  and  shall  not  be  admitted  by  the  other 
party  or  parties. 

197.  When  a  stenographer,  appointed  by  the  Vice  Chancellor, 
shall  attend  to  take  down  the  testimony,  the  examination  shall 
proceed  as  rapidiy  as  counsel  can  ask,  and  the  witness  answer, 
the  questions.  The  examining  counsel  shall  not  take  notes,  nor 
shall  the  examination  be  delayed  in  order  that  any  counsel  or 
other  person,  except  the  reporter,  may  take  minutes  of  the  testi- 
mony. But  every  effort  shall  be  made  by  the  court  and  counsel 
to  expedite  the  cause,  so  far  as  may  be  consistent  with  a  full  and 
fair  hearing  thereof. 

198.  The  competency  of  evidence  shall  be  determined  by  the 
Vice  Chancellor,  who,  upon  the  objection  of  either  party  or  upon 
his  own  motion,  shall  exclude  evidence  that  may  be  illegal  or 
irrelevant. 

199.  At  the  time  designated  for  the  hearing  of  a  cause,  the 
hearing  shall  not  be  put  off  (except  by  consent)  for  the  absence 
of  a  material  witness,  unless  the  Vice  Chancellor  shall  be  satis- 
fied that  a  fair  and  earnest  effort  has  been  made  in  proper  time 
to  procure  the  attendance  of  such  witness,  and  if  such  attendance 
could  not  be  procured,  to  procure  his  deposition ;  and  the  Vice 
Chancellor  may,  in  his  discretion,  order  the  hearing  to  proceed, 
and  direct  that  any  material  witness  named  may  be  examined 
orally,  or  his  deposition  procured  at  a  future  day  fixed  and 
named  in  such  order;  but  the  matter  to  be  proved  by  such  wit- 
ness shall  be  disclosed  at  the  making  of  such  order,  and  no  hear- 
ing shall  be  postponed  for  any  cause,  unless  a  future  time  and 
place  for  hearing  be  fixed  and  designated,  and  such  terms  as  to 
costs  as  may  be  directed  by  the  Vice  Chancellor  be  complied 


Jiinel9lh> 
1871. 


COURT   OF   CHANCERY.  ciii 

with.  The  argument  of  a  cause  or  matter  may  be  had,  at  the 
discretion  of  the  Vice  Chancellor,  either  immediately  upon  the 
closing  of  the  testimony,  or  at  a  future  day  to  be  fixed. 

200.  Either  party,  after  a  cause  is  at  issue,  may,  upon  filing 
an  affidavit  that  a  material  witness  is  very  old,  infirm  or  about 
to  leave  the  state,  and  that  he  is  in  danger  by  reason  thereof  of 
losing  the  benefit  of  his  testimony,  take  the  deposition  of  such 
witness  before  any  examiner,  upon  like  notice  and  in  like  man- 
ner as  such  evidence  has  heretofore  been  taken ;  and  such  depo- 
sition shall  be  filed  with  the  clerk  in  chancery,  by  the  examiner 
before  whom  it  was  taken,  within  six  days  after  it  is  concluded, 
and  may  be  read  as  evidence,  subject  to  all  exceptions,  at  the 
hearing  of  the  cause,  unless  some  party  to  the  cause  shall  produce 
such  witness  at  the  hearing,  in  which  case  he  shall  be  examined 
orally. 

201.  When  a  cause  or  matter  is  referred  to  an  advisory  isis. 
master,  he  shall  proceed  to  hear  it  with  all  reasonable  dispatch, 
and  shall  advise  the  Chancellor  what  order  or  decree  to  make 
therein,  and  all  the  proceedings  in  the  cause  or  matter  shall,  from 
the  time  of  the  reference  up  to  the  final  decree  or  order,  be 
before  such  master. 

202.  The  master  shall  hear  the  cause  or  matter  in  the  same  ms. 
manner  as  provided  by  the  rules  of  this  court  in  the  case  of 
references  to  a  Vice  Chancellor,  and  all  the  provisions  of  such 
rules  with  respect  to  fixing  the  time  for  the  hearing  of  a  cause, 
(as  far  as  applicable,)  the  taking  of  testimony,  as  well  de  bene  esse 
as  otherwise,  the  excluding  of  incompetent  evidence,  and  the 
hearing  and  conduct  of  the  cause  before  a  Vice  Chancellor, 
shall  govern  the  like  matters  in  cases  before  the  advisory 
masters ;  and  the  rule  in  regard  to  the  rehearing  of  causes 
heard  by  a  Vice  Chancellor,  shall  apply  to  causes  heard  by 
the  advisory  masters. 

203.  The  advisory  masters  are  not  to  write  opinions,  but  i878. 
will  merely  advise  the  order  or  decree  by  advisory  certificate  at 
the  foot  thereof,  and  whenever  it  shall  appear  to  be  necessary  or 


CIV  RULES   OF   THE 

proper  to  do  so,  they  will  report  to  the  Chancellor  the  grounds 
of  the  order  or  decree  by  a  mere  concise  statement  of  the  facts 
found,  and  the  conclusion  thereon. 

April  4th,         204.  Advisory  masters  and  all  other  masters  to  whom  causes 

1884.  " 

or  matters  shall  be  referred  by  the  Chancellor  to  hear  the  same 
for  him,  &c.,  shall  report  thereon  within  thirty  days  from  the  time 
of  the  hearing,  unless  further  time  be  granted  by  the  Chancellor. 


XLY.— CONFIRMATION   OF   SALES   IN    FORE- 
CLOSURE. 

f^-  20tii,  205.  The  sheriff  or  other  officer  by  whom  mortgaged  premises 
shall  be  sold  on  proceedings  for  foreclosure,  begun  after  March 
12th,  1880,  shall,  within  five  days  after  the  sale,  report  it  to  this 
court  in  writing,  stating  the  name  of  the  purchaser  and  the  price 
obtained ;  and  he  shall  accompany  the  report  with  his  affidavit 
that  the  price  was  the  best  that  the  property  would,  at  the  time 
of  the  sale,  bring  in  cash,  and  unless  written  objection  to  the  con- 
firmation of  the  sale  be  filed  within  five  days  from  the  expiration 
of  the  time  limited  for  filing  the  report,  if  the  report  be  duly  filed 
within  the  time  limited  by  law  and  this  rule,  (and  if  the  report 
be  not  so  filed,  then  within  five  days  from  the  filing  thereof,)  an 
order,  which  shall  be  an  order  of  course,  confirming  the  sale  as 
valid  and  effectual  in  law,  and  directing  the  officer  by  whom  the 
sale  was  made  to  execute  a  good  and  sufficient  conveyance  in  law 
to  the  purchaser  for  the  mortgaged  premises,  may  be  entered  after 
the  expiration  of  the  time  limited  for  making  objections.  If  ob- 
jections shall  be  filed,  the  question  whether  the  property  was  sold 
for  the  best  price  that  could  be  obtained  for  it  in  cash  shall  be 
disposed  of  summarily  by  the  court,  on  affidavits  or  depositions. 


XLVI.— ANSWER    BY  WAY  OF  CROSS-BILL  AND 
FORMS   OF   PLEADING. 

April  3d,  206.  When  a  defendant  desires  such  relief  as  by  the  existing 

practice  can  only  be  obtained  by  means  of  a  cross-bill,  it  shall 


COURT   OF   CHANCERY.  CV 

not  be  necessary  to  file  such  bill  to  obtain  it ;   but  he  may  set  Amended 

•      1  •  1-1  11  t         ,  *j<^t.  17th, 

up  in  his  answer  matter  which  would  now  be  the  proper  subject  18^2. 
of  a  cross-bill  and  obtain  relief  thereon.     He  shall  preface  such 
matter  with  a  statement  that  it  is  exhibited  by  way  of  cross-bill 
in  the  form  following  : 

And  this  defendant  bj  way  of  cross-bill  exhibited  against  the  complainant, 
\_0i;  defendant,  as  the  case  may  be,']  says : 

And  he  may  answer  on  oath.  Where  it  is  exhibited  against  a 
co-defendant,  he  shall  serve  a  copy  of  the  answer  on  such 
defendant  in  five  days  from  the  date  of  filing,  unless  the  court 
shall  give  further  time.  And  in  case  any  such  co-defendant 
shall  be  non-resident,  and  it  shall  appear  that  said  defendant 
cannot,  after  reasonable  effort,  be  actually  served,  the  Chancellor 
will  by  order  direct  how  constructive  service  of  the  answer 
may  be  made.  If  the  answer  in  the  nature  of  a  cross-bill 
be  exhibited  against  the  complainant  he  shall  answer  it,  (on 
oath,  if  required,)  by  special  replication  following  the  general 
replication  to  the  rest  of  defendant's  answer,  in  the  form  pro- 
vided in  the  207th  rule,  to  be  filed  within  the  same  time  now 
fixed  for  replying.  If  against  a  co-defendant,  such  co-defendant 
shall  answer  by  a  pleading  in  the  form  of  an  answer,  (and  on 
oath,  if  required,)  to  be  filed  within  thirty  days  from  the  time 
of  serving  the  copy  of  the  answer  to  which  he  is  called  upon  to 
respond.  Issue  shall  be  joined  on  the  responsive  pleading 
(whether  it  be  by  special  replication  or  answer)  by  the  filing  of 
a  note  in  the  following  form : 

The  defendant  [or,  the  defendant if  there  be  several  defendants 

in  the  cause]  joins  issue  on  the  special  replication  \_or,  answer,  as  the  case  may 
ii^:]  of to  his  answer  in  the  nature  of  a  cross-bill. 

Such  note  shall  be  filed  in  fifteen  days  from  the  expiration  of 
the  time  for  filing  such  replication  or  answer. 


207.  The  general  replication  to  an  answer  [or  plea]  shall  be  oct.  nth, 

1  form  as  follows  :  AnTended 

Mav  12th, 
1S93. 
The  complainant  joins  issue  on  the  answer  [or,  plea]  of  the  defendant. 


CVl  KULE8   OP   THE 

The  replication  to  an  answer,  part  of  which  is  in  the  nature 
of  a  cross- bill,  shall  be  in  the  form  following : 

The  complainant  joins  issue  on  so  much  of  the  defendant's  answer  as  is  not 
in  the  nature  of  a  cross-bill,  and  as  to  that  part  of  said  answer  which  is  in  the 
nature  of  a  cross-bill,  he  says,  {_ proceeding  to  answer  the  cross-matter.'] 

Oct.  17th,  208.  The  general  charge  of  confederacy  in  bills,  and  the 

clause  reserving  exceptions,  and  the  general  clause  denying 
combination,  and  the  general  traverse,  and  the  general  profert 
of  proof  in  answers,  shall  be  omitted. (a) 

April  17th,        209.  Every  demurrer,  whether  general  or  special,  shall  dis- 


1886 


Nov.  7th, 
1883. 


tinctly  specify  the  ground  or  several  grounds  of  demurrer. (6) 


XLVII.— REVIVOR  OF  SUIT. 

210.  Upon  any  suit  in  the  Court  of  Chancery  becoming 
abated  by  death,  marriage  or  otherwise,  or  defective  by  reason 
of  some  change  or  transmission  of  interest  or  liability,  it  shall 
not  be  necessary  to  exhibit  a  bill  of  revivor  or  supplemental 
bill  to  obtain  the  usual  order  to  revive,  or  the  usual  or  neces- 
sary decree  or  order  to  carry  on  such  proceedings ;  but  an 
order  to  the  effect  of  the  usual  order  to  revive,  or  of  the  usual 
supplemental  decree,  may  be  obtained  as  of  course  upon  an  alle- 
gation supported  by  affidavit,  or  petition  duly  verified,  of  the 
abatement  of  such  suit  or  of  the  same  having  become  defective,, 
or  of  the  change  or  transmission  of  interest  or  liability :  which 
affidavit  or  petition  shall  also  state  the  grounds  upon  which  the 
right  to  revive  is  claimed.  An  order  so  obtained,  when  served 
upon  the  party  or  parties  who,  according  to  the  existing  prac- 
tice, would  be  defendant  or  defendants  to  the  bill  of  revivor  or 
supplemental  bill,  shall,  from  the  time  of  such  service,  be  bind- 
ing on  such  party  or  parties  in  the  same  manner,  in  every 
respect,  as  if  such  order  had  been  regularly  obtained  according 

(a)  See  Fairchild  v.  Fairchild,  16  18  Stew.  Eq.  504 ;  Van  Houten  v.  Van 
Stew.  Eq.  473,  Houten,  1  Dick.  Ch.  Rep.  380. 

(6)  See  Essex  Paper  Co.  v.  Greaccn, 


COURT   OF   CHANCERY.  CVU 

to  the  existing  practice.  And  such  party  or  parties  will  thence- 
forth become  a  party  or  parties  to  the  suit  in  like  manner  as  if 
he  or  they  had  been  duly  served  with  process  to  appear  to  a  bill 
of  revivor  or  supplemental  bill ;  provided,  however,  that  he  or 
they  may,  within  fifteen  days  after  such  service,  apply  to  the 
Chancellor  to  discharge  such  order ;  provided,  also,  that  if  any 
party  so  served  is  under  any  disability,  other  than  coverture, 
such  order  shall  be  of  no  force  or  effect  as  against  such  party 
until  four  days  shall  have  elapsed  after  a  guardian  ad  litem 
shall  have  been  duly  appointed  for  such  party. 

XLVIII.— OBJECTIONS  TO  EVIDENCE.(a) 


211.  It  shall  be  the  duty  of  the  examiner  before  whom  testi- 
mony is  taken  to  decide  upon  all  objections  to  evidence,  and  his 
decisions  shall  be  final  unless  reversed  on  appeal  to  the  Chan- 
cellor, which  is  to  be  taken  as  hereinafter  provided.  Though 
appeal  be  taken  the  examination  shall  nevertheless  proceed,  but 
in  conformity  with  the  ruling.  Notice  of  appeal  must  be  given 
and  entered  on  the  record  immediately  upon  the  making  of  the 
decision  of  the  examiner,  otherwise  the  right  of  appeal  will  be 
considered  as  waived.  The  notice  will  be  merely  oral.  If  there 
be  notice  of  appeal,  the  objection  and  the  ground  of  it  and  the 
examiner's  decision  thereon  must,  with  a  memorandum  of  the 
fact  of  the  appeal,  be  entered  on  the  record  of  the  evidence  at 
the  place  in  the  record  where  they  occur.  The  entry  will  be  in 
brief  form,  as  follows,  for  example : 

Defendant  objects  to  the  evidence,  on  the  ground  that  it  is  irrelevant  to  the 
issue.     Objection  overruled.     Appeal. 

A.  B.,  Examiner.     Nov.  10th,  1883. 

The  appeal  shall  be  heard,  without  further  notice,  on  the  next 
regular  motion-day,  at  the  chancery  chambers  (the  state-house 

(a)  Under  this  rule  the  examiner  out  the  evidence  of  an  incompetent 

may  reject   an  incompetent  witness.  witness.     3Ionfor^s  Adm'i- Y.Rotiiand, 

Demarest  v.  Vandenbury,  12  Stew.  Eq.  11  Stew.  Eq.  181.     Qiurre:  As  to  the 

130.    A  party  failing  to  object  waives  legality  of  the  rule  of  court  authoriz- 

his  right  to  exclude  evidence,  but  the  ing  the  examiner  to  reject  witness, 

court  on  its  own  motion  may  throw  Rice  v.  Rice,  2  Dick.  Ch.  Rep.  559. 


Nov.  7th, 
1883. 


CVlll  RULES   OF   THE 

being  deemed  for  this  purpose  a  chancery  chamber),  nearest  the 
place  where  the  testimony  was  being  taken  at  the  time  of  the 
appeal,  if  three  days  intervene  between  the  time  of  making  the 
decision  and  that  day,  but  if  not,  then  on  the  next  motion-day 
thereafter.  If  the  appellant  shall  not  bring  on  the  appeal  at 
the  time  fixed,  he  shall  pay  costs  of  the  notice,  unless  he  give 
at  least  one  day's  notice  to  the  solicitor  or  solicitors  of  the 
other  party  or  parties  to  the  issue  that  he  has  abandoned  the 
appeal.  Depositions,  except  when  taken  ex  parte,  shall  be  taken 
before  an  examiner  to  be  agreed  upon  by  the  solicitors  of  the 
parties  to  the  issue.  If  they  are  unable  to  agree  thereon,  the 
examiner  shall  be  named  by  the  Chancellor  on  motion  to  be 
made  on  a  regular  motion-day. 

XLIX.— DUTY  OF  CLERK  AS  TO  INVESTMENTS. 

1886.'  ^*^*  212.  It  shall  be  the  duty  of  the  clerk  to  keep  regular  books 

of  account,  showing  the  condition  and  manner  of  investment  of 
all  estates  and  funds  held  by  this  court,  and,  upon  payment  of 
the  usual  fees,  to  furnish  statements  and  transcripts  from  said 
books,  showing  the  condition  of  any  estate  or  fund  to  any 
person  interested  in  any  way  therein. 

The  Chancellor  may,  from  time  to  time,  order  that  an  exami- 
nation, of  such  extent  as  he  may  direct,  be  made  by  a  master  of 
the  court  into  the  condition  and  investment  of  all  or  any  of  such 
estates  or  funds,  with  a  view  to  secure  their  safety  and  advan- 
tageous investment ;  and  upon  the  report  of  such  examination, 
the  Chancellor  shall  direct  the  fees  and  allowances  therefor  to 
be  paid  from  the  estates  and  funds  benefited,  in  such  manner  as 
shall  be  just. 

L.— OBJECTIONS  TO  PLEADINGS. 

April  3d,  213.  Any  objections  to  [any  pleading,]  or  any  part  thereof, 

Ameudeci     jj^ay  be  made  and  adjudicated  upon,  on  motion,  without  the 

1882.  filing  of  a   demurrer   or   exceptions;    but  the  notice  of  such 

motion  (which  shall  be  an  eight-days'  notice)  must  state  the 

particular  ground  or  grounds  of  objection.     The  making  of  a 


COURT   OF   CHANCERY.  cix 

motion  under  this  rule  shall  be  deemed  a  waiver  of  the  right  to  Amenderi 
demur  or  except,  and  the  motion,  if  made  in  reference  to  a  bill,  is^e. 
must  be  made  within  the  time  limited  by  law  for  demurring, 
unless  the  court,  on  application,  shall  grant  further  time.{a) 

LI.— APPOINTMENT  OF   CORPORATION  AS 
TRUSTEE,  &c. 

214.  No  corporation,  entitled  by  law  to  execute  trusts  or  to  Jan.  2d, 
act  as  administrator,  guardian,  receiver  or  trustee,  shall  be 
appointed  to  such  office  until  it  shall  have  created  a  fund  to  be  • 
specifically  set  apart  for,  and  devoted  to  specially  securing  its 
liability  in  such  capacities  of  trust  and  confidence  in  accordance 
with  the  provisions  of  the  third  section  of  the  act  entitled  "A 
supplement  to  the  act  approved  May  sixth,  one  thousand  eight 
hundred  and  eighty-seven,  entitled  'An  act  to  amend  an  act 
entitled  "A  supplement  to  an  act  entitled  'An  act  for  the  incor- 
poration of  safe  deposit  and  trust  companies,'"  approved  April 
twentieth,  one  thousand  eight  hundred  and  eighty-five,"  which 
was  approved  March  thirteenth,  one  thousand  eight  hundred 
and  eighty- eight,  (Laws  of  1888,  page  164,)  and  shall  have 
deposited  with  the  register  of  the  Prerogative  Court,  according 
to  the  scheme  prescribed  by  rules  numbered  nine,  ten,  eleven  and 
twelve  of  the  Prerogative  Court,  securities  which  shall  represent 
the  said  fund,  and  shall,  before  its  appointment  to  any  office, 
present  to  the  Chancellor  a  statement,  under  the  oath  of  its  presi- 
dent or  cashier,  that  the  fund  aforesaid  has  been  set  apart  accord- 
ing to  law,  and  that  the  liabilities  of  such  company,  for  which 
the  fund  aforesaid  is  specifically  responsible,  (including  all  funds 
and  securities  of  such  trust,  and  with  them  those  about  to  come 
to  it  under  the  appointment  then  in  contemplation,)  do  not  ex- 
ceed five  times  the  value  of  such  specifically  created  and  deposited 
fund,  unless  such  fund  shall  amount  to  or  exceed  one  hundred 
thousand  dollars,  in  which  case  the  affidavit  shall  be  that  the 

(a)  If  the  bill  presents  no  ground  Wilson,  11  Slew.  Eq.  446;  see  Kirk- 
of  equity  it  may  be  dismissed,  on  palrick  v.  Corning,  13  Stew.  Eq.  254; 
motion,  under  this  rule.     Reading  v.       Leslie  v.  Leslie,  5  Dick.  Ch.  Rep.  155. 


ex  RULES   OF   THE 

liabilities  aforesaid  do  not  exceed  ten  times  the  value  of  such 
specifically  created  and  deposited  fund.  The  said  statement 
shall  be  filed  with  the  clerk  of  the  Court  of  Chancery,  and, 
within  thirty  days  after  such  appointment,  be  transmitted  by 
him  to  the  register  of  the  Prerogative  Court. 

1889'^^'  •  215.  Upon  being  appointed  to  any  such  office,  the  corpora- 
tion shall  give  bond,  but  without  surety,  similar  to  the  bond 
that  a  natural  person  would  be  obliged  to  give  if  he  or  she  were 
appointed  to  such  office. 


LII.— OF   MONEYS   IN   HANDS   OF   MASTERS. 


Jan.  8th. 
1889. 


1893, 


216.  Whenever  money  [has  been]  or  shall  be  paid  to  a  master 
Ma^y  mlf  ^^  *^^^  court,  [or  has  come]  or  shall  come  to  his  hands,  for  any 
purpose,  and  shall  remain  in  his  hands  undisposed  of,  pursuant 
to  an  order  or  decree  of  this  court,  for  the  space  of  three  months, 
the  said  master  shall  forthwith,  upon  the  expiration  of  such 
time,  unless  the  Chancellor  shall  otherwise  specially  order,  pay 
the  said  money  to  the  clerk  of  this  court,  who  shall  receipt  to 
the  master  for  such  payment,  and  shall  forthwith  deposit  the 
money  so  paid  to  him  in  the  depository  of  the  funds  of  this 
court,  to  the  credit  of  the  cause  to  which  it  belongs,  and  the 
said  money  shall  thereafter  remain  in  said  depository  subject  to 
the  order  of  the  Chancellor. 


LIII.— NOTICE  OF  SUIT  BY  STOCKHOLDER. 

Nov.  5th,  217.  In  every  suit  brought  by  a  stockholder  of  a  corporation, 

in  behalf  of  himself  and  other  stockholders,  for  relief  to  which 
the  corporation  is  entitled,  the  complainant  shall  immediately, 
on  filing  the  bill  of  complaint  and  issuing  a  subpoena  to  answer, 
give  such  notice  of  the  pendency  and  object  of  the  suit  to  the 
other  stockholders  of  said  corporation  as  the  Chancellor  shall  in 
each  case  by  order  direct. 


COURT   OF   CHANCERY.  CXI 

LIV.— OF  TYPEWRITTEN  PAPERS. 

218.  The  clerk  shall  not  suffer  to  be  filed  in  his  office  any  Feb.  27th, 
pleading  or  other  paper,  in  a  cause  pending  in  the  court,  which 
shall  have  been  printed  by  means  of  a  typewriter  by  the  use  of 
carbon  paper,  or  by  the  use  of  any  other  than  what  is  known  as 
a  "  black  record  ribbon,"  nor  unless  the  paper  upon  which  the 
pleading  is  printed  shall  weigh  at  least  seven  pounds  to  the  ream 
of  five  hundred  sheets. 


CXll 


RULES   OF   THE 


TABLE  OF  MORTALITY. 

Present  value  at  five  per  cent,  interest  of  an  annuity  of  $1 
during  life,  first  payment  to  be  made  at  the  end  of  the  year ; 
also  showing  the  widow's  percentage  of  the  net  proceeds  arising 
from  the  sale  of  land  in  which  she  is  entitled  to  dower,  her  age 
at  the  time  of  the  sale  being  given. 


o 

o  . 

2  a 

S 

o 

3  2 

Age 

^  OS 

Age 

Age 

■r.  "ci 

1^ 

a  u 

'Ji    CI. 

SI 

1^ 

^5? 

15 

16.228 

27.047 

44 

12.805 

21.342 

73 

5.4344 

9.0573 

16 

16.145 

26.908 

45 

12.648 

21.080 

74 

5.1898 

8.6497 

17 

16.067 

26.778 

46 

12.480 

20.800 

75 

4.9892 

8.3153 

18 

15.988 

26.647 

47 

12.300 

20.500 

76 

4.7920 

7.9867 

19 

15.904 

26.507 

48 

12.107 

20.178 

77 

4.6091 

7.6818 

20 

15.818 

26.363 

49 

11.892 

19.820 

78 

4.4221 

7.3702 

21 

15.727 

26.210 

50 

11.660 

19.433 

79 

4.2101 

7.0168 

22 

15.629 

26.048 

51 

11.410 

19.017 

80 

4.0144 

6.6907 

23 

15.525 

25.875 

52 

11.153 

18.588 

81 

3.7993 

6.3322 

24 

15.418 

25.697 

53 

10.892 

18.153 

82 

3.6057 

6.0095 

25 

15.304 

25.507 

54 

10.624 

17.707 

83 

3.4058 

5.6763 

26 

15.188 

25.313 

55 

10.348 

17.247 

84 

3.2114 

5.3523 

27 

15.065 

25.108 

56 

10.062 

16.770 

85 

3.0085 

5.0141 

28 

14.942 

24.903 

57 

9.7707 

16.2845 

86 

2.8303 

4.7172 

29 

14.828 

24.713 

58 

9.4781 

15.7975 

87 

2.6848 

4.4747 

30 

14.723 

24.538 

59 

9.198'.» 

15.3315 

88 

2.5967 

4.3278 

31 

14.618 

24.363 

60 

8.9399 

14.8998 

89 

2.4947 

4.1578 

32 

14.507 

24.178 

61 

8.7121 

14.5201 

90 

2.3388 

3.8980 

33 

14.388 

23.980 

62 

8.4872 

14.1453 

91 

2.3210 

3.8683 

34 

14.260 

23.767 

63 

8.2580 

13.7633 

92 

2.4120 

4.0200 

35 

14.127 

.  23.545 

64 

8.0157 

13.3595 

93 

2.5174 

4.1957 

36 

13.987 

23.312 

65 

7.7650 

12.9417 

94 

2.5685 

4.2808 

37 

13.842 

23.070 

66 

7.5027 

12.5045 

95 

2.5960 

4.3267 

38 

13.694 

22.824 

67 

7.2274 

12.0457 

96 

2.5553 

4.2588 

39 

13.541 

22.568 

68 

6.9413 

11.5688 

97 

2.4283 

4.0472 

40 

13.390 

22.317 

69 

6.6434 

11.0723 

98 

2.2783 

3.7972 

41 

13.244 

22.074 

70 

6.3359 

10.5598 

99 

2.0447 

3.4078 

42 

13.100 

21.833 

71 

6.0150 

10.0250 

100 

1.6240 

2.7067 

43 

12.957 

21.595 

72 

5.7105 

9.5175 

101 

1.1924 

1   1.9873 

COURT   OF   CHANCERY. 


CXUl 


TABLE 

Showing  the  niiiiiber  of  the  chancery  rules  as  revised  in  1893,  and  the  numbers 
of  the  corresponding  rules  before  such  revision. 

Note. — Where  blanks  are  left,  the  numbers  have  not  been  changed.  The 
following  rules  (old  numbers)  are  abrogated  or  superseded:  114,  117,  159,  202, 
203,  204,  209,  210,  211,  217.  An  asterisk  (*)  before  a  number  indicates  that 
such  rule  has  been  amended  by  the  present  revision. 


si 

•Xl 

a    r> 

CO 

Former 

Numbers. 

£-2 

CO  a 
£■§ 

If 

11 

CO 

u 

1 

45 

46 

*47 

48 
49 
50 
51 
52 
53 
54 
55 

*56 

*57 
58 

*59 

*60 
61 

*62 
63 

-64 
65 
66 
67 
68 
69 
70 
71 
72 
73 
74 
75 
76 
77 

*78 
79 

*80 
81 
82 
83 
84 
85 
86 
87 
88 

89 

*90 

91 

92 

93 

94 

95 

96 

97 

98 

*99 

*100 

101 

102 

103 

104 

105 

106 

107 

108 

109 

*110 

111 

1   112 

113 

114 

115 

116 

117 

118 

119 

120 

*121 

122 

123 

124 

*125 

126 

*127 

*128 

*129 

*130 

*13l 

132 

133 

134 

135 

136 

137 

138 

139 

140 

141 

142 

143 

144 

145 

146 

147 

148 

149 

150 

151 

152 

153 

154 

155 

156 

157 

158 

159 

160 

161 

162 

163 

164 

165 

166 

167 

168 

169 

170 

171 

172 

173 

174 

175 

176 

132 
133 
134 
135 
136 
137 
138 
139 
140 
141 
142 
143 
144 
145 
146 
147 
148 
149 
150 
151 
152 
153 
154 
155 
156 
157 
158 

177 
178 
179 
180 
181 
182 
183 
184 
185 
186 
187 
188 
189 
190 
191 
192 

*193 
194 
195 
1   196 
197 
398 
199 
200 
201 
202 
203 
204 
205 

*20(> 

*207 
208 

*209 
210 
211 
212 
213 

*214 
215 

*216 
217 
218 

176 

2 

177 

3 

178 

*4 

229 

179 

5 

180 

*6 

181 

7 

182 

*8 

183 

*9 

184 

10 

185 

11 

,1 

1 

186 

12 

228 

13 

187 

14 
15 

220 
221 
102 
103 
104 
105 
106 
107 
108 
109 
110 
111 
112 
113 
114 
115 
116 
118 
119 
120 
121 
122 
123 
124 
325 
126 
127 
128 
129 
130 
131 

188 
189 

16 

190 

17 

191 

18 

192 

19 

193 

20 

197 

21 

198 

22 

199 

23 

200 

24 

201 

25 

205 

26 

206 

27 

207 

28 

219 

29 

208 

*30 

212 

31 

213 

32 

'  235' 
165 
166 
167 
168 
169 
170 
171 
172 
173 
174 
175 

214 

33 

225 

34 

216 

35 

218 

36 

223 

37 

215 

38 

231 

39 

232 

40 

, 

233 

41 
*42 



238 
230 

43 

44 

INDEX  TO  RULES. 


No.  Rule. 

Abatement  of  suits 211 

Absent  defendants 54,  60 

notice  to  be  published  or  served.. 57 

Accounts  of  guardians  and  receivers  to  be  rendered  periodically 189 

how  examined 190 

Administrator  (see  Surplus  Money) 156 

Admission  of  parties,  notice  of  application  for 142 

Advisory  masters,  to  hear  causes  to  final  decree 201 

cause,  how  heard  by 202 

not  to  write  opinions 203 

when  to  report 204 

Affidavits,  form  of,  to  petition,  in  proceedings  against  lunatics,  &c 172 

to  answer,  how  taken  in  another  state 62 

be  used  on  special  motions,  how  served 138 

orders  to  show  cause,  how  served 139 

extend  time  for  filing  pleadings,  how  served 141 

be  used  on  motions  to  extend  time  for  taking  testimony, 

how  served 140 

filed  with  the  clerk  before  being  used  in  court 138 

Agreement  to  submit  cause  without  argument,  to  be  in  writing 17 

Amended  bill,  when  copy  of,  to  be  furnished  to  defendant 69 

Amendment  of  bill  by  complainant  of  course,  before  answer 66 

after  answer 67 

after  plea  or  demurrer  overruled,  67 

in  matters  of  form  after  demurrer,  70 

when  complainant  to  pay  costs  on 68 

sworn  bill,  how  made 71 

Answer,  order  to,  when  necessary ' 27 

practice,  when  no  defence  set  up  in 29 

with  cioss-bill 206 

Appeals  from  interlocutory  decrees  and  orders 149 

final  decrees 150 

how  served 151 

from  decision  of  examiner  as  to  evidence 211 

Appeal,  petition  of,  when  to  be  filed 152 

what  to  contain 151 

when  waived 152 

Application  to  be  made  a  party,  notice  of. 142 


CXVl  INDEX   TO   KULES, 

No.  Rule. 

Appointment  of  guardian  ad  litem,  on  petition. 63 

notice 64,  65 

trustee 162,214 

Arguments,  none  in  summer  vacation,  except  in  certain  cases 1 

order  in  which  counsel  heard  on 7 

Attachment  for  contempt,  appearance  of  defendant  in 135 

defendant  in  to  give  bond... 134 

interrogatories  to  defendant  in 136,137    • 

wi-it  of,  who  to  be  included  in 133 

when  returnable 133 

Bill,  amendment  of  (see  Amendment) 66-71 

dismissal  of,  after  replication  filed  and  proofs  begun 15 

for  want  of  prosecution 30 

for  injunction,  verification  of. 119 

joinder  of  complainants  in 132 

to  be  signed  by  counsel 48 

of  foreclosure,  not  to  recite  bond  and  mortgage  at  length 50 

not  to  recite  records,  &c.,  in  full 49 

formal  clauses  omitted 208 

Bond,  form  of,  on  injunction... 127 

to  stay  ejectment 126 

of  defendant,  on  ne  exeat 192 

guardian  of  infant ISO 

lunatics,  &c 176 

how  approved 182 

Books,  inspection  of,  &c 31,  32 

Cause,  when  submitted  Avithout  argument,  practice 17 

set  down  by  consent,  when  heard 9 

time  for  setting  down  for  hearing 1,  3,  9 

when  defendant  entitled  to  conduct  of. 28 

when  to  be  noticed  forbearing 10 

Caveat,  when  to  prevent  enrollment  of  decree 145 

Chancellor,  when  a  party  to  suit,  practice 160 

Clerk,  appointment  of,  as  guardian  for  infant  in  foreclosure 65 

duty  of,  as  to  accounts  of  guardian,  &c 190 

estates  in  court 212 

typewritten  papers 218 

to  report  delinquent  guardian  and  receiver 190 

how  to  make  copies  of  records 37 

not  to  practice  as  solicitor,  &c i 35 

suffer  files  of  court  to  be  removed 36 

file  papers  when  solicitor  in  arrears , 38 

taxation  of  costs  by,  for  setting  down  cause — 104 

to  keep  a  docket 40 

when  to  make  statement  of  funds  in  his  hands 33 

Commission  to  take  testimony,  when  and  how  applied  for.... 96 


INDEX   TO   RULES.  CXVll 

No.  Rule. 

Commission  to  take  testimony,  names  of  witnesses  to  be  inserted  in...  98 

interrogatories  to  be  annexed  to 98 

Commissions  of  special  guardians 187 

masters  on  sales  in  partition 166 

Commissioners  to  take  testimony,  how  appointed 97 

Complainant,  when  to  be  examined  to  disprove  answer,  &c 88 

Contempt,  attachment  for  (see  Attachment) 133-137 

Corporation  as  trustee,  appointment  of. 214 

Costs,  objection  to  award  of,  how  made 103 

allowed  successful  party  without  special  order 108 

allowance  in,  for  deed  of  guardian 113 

execution  for,  how  issued 114 

for  amendment,  when  not  allowed 108 

of  motion  not  allowed  when  party  in  laches 108 

in  mortgage  cases,  none  allowed  for  proceedings  at  law  on  the 

bond Ill 

of  examinations  and  cross-examinations,  how  paid  by  parties...  109 
one  attendance   only  before  master   or  examiner   allowed 

unless  new  notice  necessary 109 

motion,  when  not  allowed 108 

notice  of  motion,  when  and  how  taxed 105 

setting  down  cause,  how  taxed 104 

against  defaulting  party 106,107 

for  service  of  subpoena  to  answer 112 

Counsel  fee,  attending  master  or  examiner 109 

Cross-bill,  answer  hy  way  of. 206 

service  of. 206 

Curtesy,  order  of  reference  as  to  value  of. 184 

sale  of  infants'  land,  free  from 183 

value  of,  how  fixed 184, 185 

in  partition  sales,  how  ascertained 168 

Decrees,  objection  to  form,  how  made 101 

Decree  pro  confesso  against  absent  defendants 60 

where  no  infant  defendants 22 

against  mortgagor,  other  encumbrancers  answering, 

practice 23 

defendant,  not   to  prejudice  his  rights  as 

encumbrancer 24 

final,  in  mortgage  cases 22,  23 

practice  as  to,  when  decree  joro  confesso  entered 22 

on  further  directions,  when  may  be  entered 16 

in  foreclosure  suits,  where  infants  are  parties 65 

when  to  be  enrolled 101,  145 

execution  may  issue  on 118 

not  to  be  signed  when  caveat  filed 145 

in  lunacy  proceedings,  when  to  be  filed 574 


CXVlll  INDEX   TO   EULES. 

No.  Rt'LE. 

Decree  for  deficiency 53 

sale  in  partition,  tenant  in  dower,  &c.,  to  have  notice  of...  168 

pro  confesso,  effect  of,  in  foreclosure  suits  in  certain  cases 24 

Defendant,  absent 54-60 

may  proceed  in  name  of  complainant,  when 28 

when  may  bring  on  cause  for  hearing 15 

Deficiency,  decree  for 53 

Demurrer,  notice  of  argument  of,  how  served 11 

for  want  of  parties 70 

particular  grounds  of  to  be  stated 209 

Depositions,  how  to  be  taken  down  by  examiner 90 

in  a  cause,  when  to  be  filed 93 

of  infirm  persons,  how  taken 20O 

Deposits  in  court,  interest  on 161 

Dismissal  of  bill  for  want  of  prosecution 30 

Divorce,  decree  in  ex  parte,  when  signed 165 

form  of  bill,  &c.,  for  adultery 163 

report  of  master  in , 164 

references  in,  to  be  to  special  masters 45 

testimony  in,  before  master,  how  taken 164 

suits  for,  to  be  set  down  for  hearing  at  regular  term 14 

Documents  not  made  exhibits,  practice  as  to 95 

Dower,  order  of  reference  as  to  value  of...., 184 

value  of,  how  fixed 183,185 

when  infants'  lands  to  be  sold  free  from 183 

Drunkard,  habitual,  to  have  notice  of  inquisition • 173 

form  of  petition  for  sale  of  lands  of. 175 

Drunkenness,  habitual,  affidavit  to  petition  in  matter  of 172 

Enrollment  of  final  decree 101 

caveat  against 145 

Evidence  (see  Testimony),  objections  to  before  examiner 211 

appeal 211 

before  a  master  to  be  reduced  to  writing 44 

competency  of,  before  Vice  Chancellor 198 

documentary,  when  to  be  excluded 95 

when  to  be  printed  and  how  paid  for  99, 100 

Examinations 78 

list  of  witnesses  to  be  annexed  to 92 

of  witnesses,  when  to  be  in  writing 44 

under  a  decretal  order  to  be  at  expense  of 

party  requiring  it  44 

how  to  be  taken  down  by  examiner 90 

each  page  and  every  tenth  line  of  to  be 

numbered 92 

in  a  cause,  when  to  be  filed, 93 

Examiner,  oath  of  office  of. 42 


INDEX    TO   EULES.  CXIX 

No.  Rule. 

Examiner,  duty  of,  upon  objection  to  evidence 211 

how  selected  wlien  parties  cannot  agree 211 

Exceptions 72 

to  master's  report,  notice  of,  how  served 11 

how  set  down  for  hearing 12 

answer  for  scandal,  &c.,  how  referred 72 

insufficiency,   when    rule    to   refer,   to   be 

entered 73 

practice.whendefendantsubmits  to  answer.. .73,  74,  75 

pleadings  generally,  for  scandal,  &c 76 

Execution,  to  issue  to  sheriff  unless  otherwise  ordered 115 

for  costs,  how  issued 114 

deficiency,   order   of    liability   of    defendants    to    be 

endorsed  on 116 

when  sheriff  to  make  return  of 117 

to  issue  on  final  decree 118 

Executor  (see  Surplus  Money) 155 

Exhibits,  copies  of,  how  procured 89 

to  be  left  with  examiner 89 

Fees  of  state  and  clerk  to  be  paid  by  solicitor 38 

master  on  special  references 47 

stenographers  and  examiners,  how  paid 110 

master  on  sales  in  partition 166 

Foreclosure,  sale  in,  how  confirmed 205 

bill,  how  bond  and  mortgage  to  be  set  out  in 50 

when  order  of  reference  in,  not  necessary 21 

answer  in,  sets  up  no  defence,  practice 29 

admits  the  complainant's  claim. 23 

Guardian,  accounts  of,  how  examined 189, 190, 191 

application  to  mortgage  minor's  lands 188 

bond  of,  on  sale  of  infant's  land 180 

of  lunatic,  idiot,  &c.,  to  give  bond 176 

infant  defendant,  appointment  of,  on  i^etition 63 

notice 64 

clerk  appointed  65 

special,  how  appointed 181, 182 

Hearing  before  Vice  Chancellor 193-196 

of  divorce  suits  to  be  at  the  regular  term 14 

no  day  to  be  assigned  for,  until  evidence  closed 2 

order  and  manner  of  setting  down  causes  for 3 

in  which  counsel  to  be  heard  on 7 

how  brought  on  by  defendant 15 

party  bringing  on,  to  furnish  state  of  case,  &c 8 

abbreviation  of  pleading^; 8 

each  party  to  fjirnish  Chancellor  with  brief  at 8 

causes  to  be  noticed  for,  at  next  term  after  evidence  closed...  10 


CXX  INDEX   TO   EULES. 

No.  Rule. 

Hearing,  causes  not  to  be  set  down  for,  after  twentieth  day  of  term...  10 

Holidays,  legal,  no  motions  heard  on 4 

Idiocy  proceedings,  affidavit  to  petition  in 172 

Idiots,  lunatics  and  drunkards,  application  for  commission 172 

Idiot,  to  have  notice  of  inquisition 173 

when  returned 174 

bond  of  general  guardian 176, 178 

sale  of  lands  of,  form  of  petition  for 175 

reference  to  master 177 

Infant  defendants  and  suits  on  mortgages 63 

Infant  defendant,  appointment  of  guardian  for 63,  6-4 

when  clerk  appointed  guardian  for 65 

duties  of  master  on  reference  as  to 65 

application  to  mortgage  land  of. 188 

sale  of  land  of,  form  of  petition  for 179 

reference  to  master 181 

appointment  of  guardian 182 

guardian  to  give  bond 180-182 

free  from  dower,  &c 183 

value  of  dower  ascertained 184,  185 

guardians'  commissions 187 

Injunction,  bill  for,  how  verified  in  certain  cases 119 

after  answer,  notice  for  required 128 

common,  form  of  bond  on 127 

joinder  of  complainants  on  bill  for 132 

master 121 

order  to  show  cause,  on  application  for 122 

on  denial  of,  bill  to  be  filed 129 

practice  as  to,  against  corporations,  <&c 120 

on  motion  to  dissolve,  before  answer 123 

after  answer 124 

to  stay  proceedings  at  law 125 

ejectment 126 

form  of  bond  on 126 

writ  of,  how  to  be  served  and  returned 130 

may  be  granted  by  Vice  Chancellor 131 

Inquisition  in  lunacy,  decree  on  when  to  be  filed 174 

when  to  be  returned 174 

Inspection  of  books,  &e.,  how  obtained 31,32 

Interest  on  deposits  in  court 161 

Interrogatories,  practice  to 77 

to  be  annexed  to  commission  to  take  testimony 98 

Investments  in  court,  examination  of  by  master 212 

Joinder  of  complainants  in  bill  for  injunction 132 

Land  of  infants,  sale  of. ••••  1'9 

Lunacy,  inquisition  of,  when  to  be  returned 174 


INDEX   TO   RULES.  CXXl 

No.  Rule. 

Lunacy,  proceedings,  affidavits  to  petition  in 172 

Lunatic,  sale  of  land  of,  form  of  petition  for 175 

may  be  examined  on  in([uisition 172 

to  have  notice  of  inquisition 173 

Mailing  notices  to  absent  defendants..... 59 

Married  woman,  share  of,  in  partition,  how  payable 167 

Masters  and  examiners 42 

Master,  duties  of,  in  foreclosure  suits  against  infants  65 

examination  taken  before,  to  be  in  writing 44 

fees  of. 47 

on  sales  in  partition 166 

interested  in  business  of  solicitor  in  the  suit  not  to  make  sale..  46 

oath  of  office  of 42 

may  proceed  without  notice  to  defendants  against  whom  decree 

taken  p-o  confesso,  when  there  are  no  infant  parlies 22 

practice  before,  in  case  there  are  infant  defendants 65 

references  to,  practice  on 43 

report  of,  on  application  for  sale  of  infants'  land 181 

special,  what  matters  referred  to 45 

what  not  to  make  sale  in  partition  suits 171 

Mileage,  allowance  for,  in  costs,  on  service  of  subpoena 112 

Money  in  court,  depository  of 34 

hands  of  master,  disposition  of. 216 

Motions,  contested,  how  to  be  heard  in  summer  vacation 1 

preferred  over  causes  on  the  list 6 

notices  of,  how  served 20,141 

Motion-days,  notice  of  motion  for  days  other  than,  how  available 5 

no  motions  requiring  notice  to  be  heard,  except  on  5 

before  the  Chancellor  or  Vice  Chancellors 4 

Ne  exeat  bond,  form  of. 192 

Notice  of  motion 20,  141 

application  to  be  made  a  party 142 

date  of  issue  of  cause  to  be  furnished  clerk 3 

confirmation  of  report,  when  defendant  not  entitled  to 22 

to  absent  defendants,  what  to  contain 58 

of  hearing,  when  to  be  served 11 

of  exceptions  to  master's  report 11 

plea  or  demurrer 11 

motions,  how  served 20 

taking  testimony,  how  served 20 

petition  for  rehearing 144 

sale  free  from  dower  or  curtesy 168 

how  waived 169 

taking  testimony,  how  served 20 

to  absent  defendants 57 

form  of. 58 


CXXll  INDEX    TO    RULES. 

No.  Rule. 

Notice  to  absent  defendants,  how  served 59 

proof  of,  how  made 60 

lunatic,  idiot  and  drunkard,  of  inquisition 173 

proof  of  service  of. 173 

Objections  to  evidence 211 

pleadings 213 

Order  appointing  special  guardian 182 

confirming  sale  of  infants'  land,  what  may  be  embraced  in 186 

for  rehearing,  not  to  stay  interlocutory  proceedings 147 

objections  to  form  of,  how  made 101 

for  sale  of  infants'  lands 182 

nisi,  how  served 20,  25 

service  of,  when  not  necessary 22,  23,  25 

not  to  be  filed  nuric  pro  tune  without  leave 41 

until  signed 41 

of  business  on  first  day  of  term  and  on  motion-day 6 

publication,  form  of. 54 

against  married  woman 55 

none  until  after  return-day  of  subp(X'na 56 

reference  in  foreclosure,  when  not  necessary 21 

form  of  and  practice  on  in  mortgage  cases,  where 

there  are  infant  defendants 65 

for  sale  of  lands  of  lunatics,  &c 177 

infants 181 

as  to  dower  and  curtesy 183, 184 

to  Vice  Chancellor 193,  194 

to  answer,  when  necessary 27 

confirm  reports,  how  served 20 

show  cause  in  injunction  cases 122 

speed  cause  may  be  taken  in  vacation 18 

take  proofs  ex  jMrte,  proceedings  under 26 

Party,  application  to  be  admitted  as,  notice  of 142 

*  Partition,  fees  of  masters  on  sales  in. 166 

master  reporting  on  merits  in,  not  to  sell 171 

order  of  reference  form  of,  in 166 

practice  when  answer  sets  up  no  defence 29 

master's  report  in,  proceedings  on 166 

references  in,  to  be  to  special  masters 45 

sale  in,  free  from  dower  or  curtesy;  notice 168,  169 

share  of  married  woman  in,  how  payable 167 

value  of  dower  or  curtesy  in,  how  ascertained 70 

Petition  for  rehearing,  what  to  contain 143 

to  be  signed  by  two  counsel 143 

copy  of,  to  be  served 144 

effect  of  caveat 145 


INDEX   TO   KULE8.  CXXlii 

No.  Rule. 
Petition,  veriiied,  may  be   used  as  affidavit  on  hearing  of  order  to 

show  cause 139 

on  appeal,  when  to  be  tiled , 152 

in  default  of  filing,  appeal  waived 152 

for  sale  of  infants'  lands,  form  of 179 

who  to  present 179 

for  surplus  money,  when  may  be  presented 153 

Plea,  notice  of  argument  of,  how  served 11 

argument  of,  how  brought  on 13 

testimony,  how  taken,  when  issue  joined  on 91 

Pleadings,  objections  to,  how  heard 213 

abbreviation  of,  &c.,  to  be  furnished  on  hearing 8 

copies  of,  how  made  by  clerk 37 

not  to  recite  records,  &c.,  in  full 49 

Printing  evidence 99 

Process 51 

Publication  of  notice  to  absent  defendants,  proof  of 60 

Eeceiver,  accounts  of,  how  examined 189, 190, 191 

duties  of,  as  to  accounts 189 

Eecords  not  to  be  recited  in  full  in  pleadings 49 

Reference  in  foreclosure,  when  not  necessary , 21 

to  master,  proceedings  on,  when  notice  necessary 43 

Vice  Chancellor 193,194 

Rehearing 143 

of  decrees  advised  by  Vice  Chancellor 148 

order  for,  not  to  stay  interlocutory  proceedings 147 

petition  for,  copy  of  to  be  served 144 

notice  of  presenting  to  be  served 144 

order  of  argument  on 143 

to  be  signed  by  two  counsel 143 

what  to  contain 143 

when  granted  of  course 146 

Replication,  general  to  an  answer  and  plea,  form  of 207 

special,  form  of 207 

to  an  answer  by  way  of  cross-bill,  form  of. 206 

Report  of  master,  how  coniirmed  as  against  answering  encumbrancer...  23 

on  application  for  sale  of  infants'  land 181 

when  may  be  confirmed  without  notice 22 

not  to  prejudice  rights  of  defendants  not  appearing  before 

him 24 

Return  of  inquisition  of  lunacy,  when  to  be  made 174 

Revivor  of  suits  by  petition 210 

Rules  and  orders 18 

common,  defined :.,.  19 

how  entered 19 

special,  defined 19 


cxxiv  INDEX   TO   RULES. 

No.  Rule. 

Rules  nisi,  how  served •••  20 

Sale  of  infant's  land,  references  on  application  for,  to  be  to  special 

master „ 45 

form  of  petition  for 179 

master's  report  of 181 

not  to  be  made  by  a  master  interested  in  business  of  solicitor  in 

the  cause •• 46 

of  land  free  from  dower,  &c 168, 183 

of  lunatic,  idiot,  &c.,  form  of  petition  for 175 

guardian's  bond 176 

form  of  order  of  reference 177 

when  guardian  to  iile  bond 178 

Setting  down  cause,  &c 1^ 

Sheriff,  when  to  return  execution 117 

pay  surplus  into  court 117 

every  execution  to  issue  to,  unless  otherwise  ordered  114 

Solicitor  answerable  for  fees  of  Chancellor  and  clerk 38 

Special  guardian,  how  appointed 182 

commissions  of. 187 

duties  of,  as  to  accounts 189 

masters,  what  matters  to  be  referred  to 45 

Stay  of  proceedings  on  rehearing 147 

Stenographer,  fees  of,  how  paid HO 

of  "Vice  Chancellor 19' 

Stockholder,  suit  by,  notice '- 21/ 

Submission  of  cause  without  argument  to  be  in  writing 17 

Subpoena,  all  defendants  in  same  county  to  be  inserted  in  one 51 

for  witnesses,  how  procured.... ^4 

Suit,  when  considered  as  abandoned 30 

Suits  where  Chancellor  is  a  party ••  160 

by  stockholders,  notice 217 

Summons  to  attend  master,  how  served 20 

Surplus  money,  references  as  to,  to  be  to  special  masters 45 

rights  in,  of  defendants  who  do  not  appear  in  suit 24 

petition  for,  in  foreclosure  suits,  when  may  be  presented,  153 

proceedings  before  master,  on  application  for 154 

application  for,  by  executors,  &c 155 

petition  for,  by  executors,  &c.,  what  to  contain 155 

account  annexed  to 155 

to  be  sworn  to..  155 

notice  of  application  for,  by  executors,  &c 156 

form  of  order  of  reference 15/ 

to  whom  master  to  give  notice 157 

order  for,  to  executor,  when  to  be  made 158 

executor,  &c.,  to  give  bond 159 

form  of  bond 1^^ 


INDEX   TO   KULE8.  CXXV 

No.  Rule. 

Terms  of  court,  how  long  continued  for  setting  down  cause?,  &c 1 

stated,  when  held.. 1 

Testimony  not  to  be  taken  before  partner,  &c.,  of  solicitor  except  by 

consent 79 

in  a  cause  at  issue,  how  taken 78 

when  comi)lainant  to  commence  taking  and  wlien  to  con- 
clude   80 

defendant  to  commence   taking  and  when  to   con- 
clude   81 

taking  of,  when  and  how  adjourned 82 

of  complainant,  in  rebuttal,  when  to  be  commenced 83 

counter,  of  defendant,  when  to  be  produced 83 

of  either  party,  how  adjourned 84 

time  for  taking,  by  either  party,  how  enlarged 85,  86 

what  days  not  to  be  computed,  in  taking,  under  the  rules.  ..  87 

of  complainant,  in  his  own  behalf,  how  taken 88 

how  taken,  when  issue  joined  on  a  plea 91 

written,  form  of. 92 

when  to  be  filed  by  examiners 93 

commission  to  take,  when  and  how  applied  for 96 

commissioners  to  take,  how  appointed 97 

when  to  be  printed  and  how  paid  for 99, 100 

of  infirm  persons,  how  taken 200 

Tickets,  copies  of,  to  be  served  with  subpa'ua 52 

Trustees,  appointment,  &c.,  of. 162 

Vacation,  summer,  duration  of 1 

Vice  Chancellor,  reference  to 192, 193 

may  grant  injunctions 131 

decrees  advised  by,  how  reheard 148 

to  hear  suits  when  Chancellor  a  party 160 

causes  before,  how  heard 195,  196 

to  determine  competency  of  evidence 198 

causes  before,  not  postponed  for  absence  of  witnesses,  199,  200 

Witness,  deposition  of,  how  to  be  taken  down 90 

complainant  as,  to  disprove  answer,  &c.,  how  examined 88 

Witnesses,  list  of,  to  be  annexed  to  examination 92 

subpcena  for,  how  procured 94 

names  of,  to  be  inserted  in  commission  to  take  testimony...  98 

Writ  of  injunction,  Iiow  served  and  returned ]30 

may  be  granted  by  Vice  Chancellor 131 

attachment,  for  contempt,  when  returnable 133 

execution  for  costs,  how  issued 114 

deliciency 116 


RULES 


Court  of  Errors  and  Appeals 


NEW  JERSEY. 


I.— OF  THE  MEMBERS  OF  THE  COURT. 

1.  No  member  of  this  court  shall,  as  attorney,  solicitor  or 
counsel,  be  concerned  in  or  argue  any  cause  in  this  court,  either 
upon  error  or  appeal. 

II.— OF  ATTORNEYS  AND  SOLICITORS. 

2.  In  cases  of  writs  of  error  or  appeals,  the  attorney  of 
record  or  solicitor  for  the  adverse  party,  if  any,  in  the  court 
below  shall  be  considered  as  attorney  or  solicitor,  as  the  case 
may  be,  for  the  defendant  in  error  or  respondent  in  appeal ;  and 
notices  and  papers  served  on  him  shall  be  deemed  good  service, 
until  the  defendant  in  error  or  respondent  in  appeal  shall  give 
notice  in  writing  to  the  plaintiif  in  error  or  the  appellant  in 
appeal  that  he  has  employed  another  attorney  or  solicitor, 
naming  in  such  notice  the  attorney  or  solicitor  employed,  or 
until  appearance  entered  by  a  new  attorney  or  solicitor. 

III.— OF  THE  ORDER  OF   BUSINESS. 

3.  The  court  shall  meet  at  eleven  o'clock  in  the  forenoon  of 
the  first  day  of  every  term,  and  at  ten  o'clock  in  the  forenoon 


CXXVlll  BULES   OP   THE 

of  every  other  day  in  the  term,  except  Saturday,  when  no  court 
will  be  held,  unless  ordered. 

4.  The  presiding  officer  shall  call  the  court  to  order,  and 
proceed  to  business  at  the  hour  to  which  the  court  shall  stand 
adjourned,  or  as  soon  thereafter  as  a  quorum  shall  be  present. 

5.  The  clerk  shall  enter  in  the  minutes  the  names  of  the  mem- 
bers who  shall  be  present  at  each  session  of  the  court  during  the 
term. 

6.  The  court  shall  sit  five  hours  on  each  day. 

7.  On  the  opening  of  the  court  on  the  morning  of  the  first 
day  of  each  term,  the  presiding  officer  shall  inquire  if  any  per- 
son has  any  motions  for  rules  or  orders,  or  other  special  applica- 
tion, to  make  to  the  court ;  and  so  much  of  said  day  shall  be 
appropriated  to  the  hearing  of  such  matters  as  may  be  necessary, 
but  no  such  motions  or  applications  shall  be  heard  on  any  other 
day  in  term,  without  the  special  permission  of  the  court. 

8-  Special  motions  shall  require  a  notice  thereof,  with  copies 
of  the  papers,  not  records  of  this  court,  to  be  served  at  least  two 
entire  days  before  the  motion  is  made.  Half  an  hour  on  each 
side  is  allowed  for  argument  of  motions  and  special  applications. 

9.  Affidavits,  to  be  used  on  any  special  motions  or  arguments 
in  this  court,  shall  be  taken  on  four  days'  previous  notice  of  the 
time  and  place  of  taking  the  same,  at  which  time  and  place  both 
parties  may  take  affidavits.  If  not  taken  on  such  notice  no 
affidavits  shall  be  read,  unless  a  copy  thereof  has  been  served  on 
the  adverse  party  at  least  eight  days  before  the  first  day  of  the 
term ;  and  in  such  case  the  adverse  party  may  take  and  use  on 
the  argument  counter  affidavits  taken  without  notice. 

10.  No  motion  to  dismiss  an  appeal  or  writ  of  error  should 
be  entertained  except  upon  notice  or  in  presence  of  the  solicitor 
or  attorney  of  the  appellant  or  plaintiff  in  error. 


COURT   OF   ERROES   AND   APPEALS.  CXXIX 

11.  As  soon  as  the  motions  have  been  disposed  of,  the  pre- 
siding officer  shall  take  up  the  list  of  causes,  and  they  shall  be 
brought  on  in  the  order  in  which  they  stand  upon  the  list,  unless 
otherwise  ordered  by  the  court. 

iy._OF  SETTING  DOWN  CAUSES,  &c. 

12.  All  causes,  whether  on  appeal  or  writ  of  error,  may  be 
brought  on  and  heard  upon  twenty  days'  notice  thereof  in  writ- 
ing, and  on  filing  a  copy  or  abstract  of  such  notice  in  the  office 
of  the  clerk,  at  least  five  days  previous  to  the  first  day  of  the 
term  at  which  such  cause  is  to  be  set  down  for  hearing. 

13.  All  causes  shall  be  noticed  for  hearing  on  the  first  day  of 
the  term,  if  at  issue  long  enough  to  admit  of  such  notice ;  if  not, 
then  they  may  be  noticed  for  a  day  in  term,  not  later  than  the 
twentieth  day. 

14.  All  causes  noticed  for  hearing  or  argument  shall  be  set 
down  by  the  clerk  upon  the  calendar  or  list  of  causes  in  the  fol- 
lowing order,  that  is  to  say  :  writs  of  error  shall  have  precedence 
according  to  the  time  at  which  they  were  returnable,  and  appeals 
shall  have  precedence  according  to  the  time  of  filing  the  petition 
of  appeal  in  this  court. 

15.  Among  writs  of  error  returnable  and  petitions  of  appeal 
filed  on  the  same  day,  priority  on  the  list  shall  be  given  according 
to  the  time  of  filing  the  notices  of  hearing. 

16.  It  shall  be  the  duty  of  the  clerk  to  furnish  the  court,  on 
the  first  day  of  each  term,  with  a  list  of  the  causes  noticed  for 
hearing,  in  the  order  in  which  they  shall  be  entitled  to  be  heard 
according  to  the  rule. 

17.  The  appellant  or  plaintiff  in  error  shall  notice  the  cause 
for  argument,  serve  the  state  of  the  case,  and  bring  on  the  hear- 
ing according  to  law ;  and  if  he  fail  so  to  do,  the  order,  decree 
or  judgment  below  shall  be  affirmed,  or  the  appeal  or  writ  of 
error  shall  be  dismissed,  as  the  court  shall  direct. 


CXXX  RULES   OF   THE 

v.— OF   PRINTING  AND  SERVING  COPY  OF 
CASE,  &c. 

18.  The  appellant  or  plaintiff  in  error  shall  provide  a  state 
of  the  case,  containing  the  pleadings,  proofs  and  order  or  decree 
in  chancery,  and  the  petition  of  appeal  and  answer  on  appeal, 
and  the  record  and  assignment  of  errors  on  writ  of  error,  and 
also  the  reasons  given  in  the  court  below  for  the  decree,  order  or 
judgment  complained  of  (or  an  abridgment  thereof,  in  case  one 
can  be  agreed  on  by  the  parties  or  their  counsel),  which  shall  be 
printed  on  good  paper,  with  a  large  margin,  with  pages  num- 
bered consecutively,  and  every  tenth  line  of  each  page  numbered. 
Three  copies  of  the  state  of  the  case  shall  be  furnished  to  each 
adverse  party,  at  least  twenty  days  before  the  day  noticed  for 
argument,  and  a  copy  shall,  previous  to  the  hearing,  be  delivered 
to  each  member  of  the  court,  and  to  the  clerk  to  be  filed. 

19.  In  all  cases  each  party  shall  furnish  to  each  member  of 
the  court  and  to  each  of  the  opposite  counsel,  in  print,  at  the 
commencement  of  the  argument,  the  points  upon  which  he 
means  to  rely,  together  with  a  citation  of  all  the  authorities  to 
be  used  in  the  argument,  and  cases  may  be  submitted  on  such 
argument. 


VI.— OF  THE  PETITION  OF  APPEAL  AND 
DEPOSIT. 

20.  In  all  cases  of  appeal  from  any  order  or  decree  of  the 
Court  of  Chancery,  the  party  appealing  shall,  within  the  time 
limited  by  law  for  making  an  appeal,  and  either  in  term  or  vaca- 
tion, file  with  the  clerk  of  this  court  a  petition  of  appeal,(a)  in 
which  shall  be  briefly  stated  the  order  or  decree  complained  of 
and  the  grounds  of  appeal,  and  shall  serve  a  copy  thereof  on 
the  solicitor  of  the  adverse  party,  if  he  has  a  solicitor,  or  if  he 
has  not,  then  on  the  adverse  party,  if  to  be  found  in  this  state, 

(a)  See  Chanceiy  Eule  152. 


COURT   OF   ERRORS   AND   APPEALS.  CXXXl 

within  thirty  days  after  filing  the  said  petition  ;  and  shall  also, 
within  the  same  time,  deposit  with  the  clerk  in  chancery  one 
hundred  dollars  to  answer  the  costs  of  the  appeal,  if  the  appel- 
lant shall  not  prosecute  the  same  to  effect ;  and  in  default  of 
serving  a  copy  of  the  petition,  and  making  such  deposits  as 
aforesaid,  proceedings  may  be  had  on  the  order  or  decree  ap- 
pealed from,  as  if  such  appeal  had  not  been  made ;  and  the  said 
appeal  may  be  dismissed  by  this  court,  with  costs. 

VII.— OF   THE   APPEAL. 

21.  No  respondent  shall  be  entitled  to  the  dismissal  of  an 
appeal  from  any  interlocutory  order  or  decree,  upon  the  ground 
that  such  appeal  was  not  made  within  the  time  limited  by  law, 
unless  he  shall,  within  thirty  days  after  service  of  the  petition 
of  appeal,  give  notice  of  such  objection  to  the  appellant  or  his 
solicitor,  and  shall  present  the  objection  to  the  court  at  the  next 
term  thereafter ;  and  upon  receipt  of  such  notice  the  appellant 
shall  be  absolved  from  the  duty  of  prosecuting  the  appeal,  until 
after  the  then  next  term  of  the  court.  But  this  rule  is  not  to 
be  regarded  as  interfering  with  the  right  of  the  court  to  dismiss 
an  appeal  for  the  cause  aforesaid,  at  any  time,  upon  such  terms 
as  may  be  just. 

22.  Whenever  a  deposit  shall  be  made  as  aforesaid,  with  the 
clerk  in  chancery,  he  shall,  if  required,  with  all  convenient 
speed,  cause  copies  of  the  several  orders  and  the  decree  in  the 
cause,  to  be  made  at  the  expense  of  the  appellant  (who  shall  be 
liable  for  the  same  in  the  first  instance)  and  deliver  the  same, 
with  all  the  pleadings,  depositions,  exhibits  and  papers  which 
may  have  been  filed  in  his  office  relating  to  the  cause,  to  the 
clerk  of  this  court ;  and  the  said  deposit  shall  be  subject,  prior 
to  any  other  lien,  to  the  fees  of  the  clerk  in  chancery  for  the 
said  copies. 

23.  The  respondent  shall  file  an  answer  to  the  petition  of 
appeal  within  thirty  days  after  service  of  a  copy  of  the  said 
petition  and   making    the    deposit    aforesaid ;    and    in    default 


CXXXll  RULES   OF   THE 

thereof,  the  appellant  may  enter  a  rule  as  of  course,  in  vacation 
or  term-time,  with  the  clerk  of  this  court,  for  the  hearing  of  the 
said  appeal,  and  may  bring  on  the  same,  by  giving  and  filing 
notice  thereof,  in  accordance  with  these  rules. 

24.  Appeals  from  the  Prerogative  Court  shall  be  governed 
by  the  rules  of  this  court  relating  to  appeals  from  the  Court  of 
Chancery. 

VIII.— OF   WRITS  OF   ERROR. 

25.  All  writs  of  error  shall  be  made  returnable  within  twenty 
days  from  the  time  of  issuing  the  same. 

26.  The  plaintiff  in  error  shall  assign  and  file  errors,  and 
serve  a  copy  thereof  on  the  attorney  of  the  defendant  in  error, 
if  he  has  an  attorney,  or  if  he  has  not,  then  on  the  defendant  in 
error,  if  to  be  found  in  this  state,  within  thirty  days  after  the 
writ  of  error  shall  be  returned,  with  the  transcript  of  the  record 
or  proceedings,  unless  diminution  alleged,  and  then  in  thirty  days 
after  the  return-day  of  the  certiorari ;  or,  in  default  thereof,  the 
plaintiff  in  error  shall  be  non-prossed,  unless  this  court  shall  see 
cause  to  allow  further  time. 

27.  If  the  defendant  shall  not  join  in  error  within  thirty 
days  after  the  expiration  of  the  time  limited  or  granted  for  as- 
signing, filing  and  serving  errors,  the  plaintiff"  may  enter  a  rule 
of  course,  either  in  vacation  or  term,  with  the  clerk  of  this  court, 
setting  down  the  cause  to  be  argued,  and  may  bring  on  the  argu- 
ment by  giving  and  filing  notice  thereof,  in  accordance  with  these 
rules. 

28.  If  the  plaintiflP  in  error  shall  allege  diminution  of  the 
record,  it  shall  be  done  on  the  day  the  writ  of  error  shall  be 
returned,  or  within  eight  days  thereafter,  and  he  shall  thereupon 
apply  to  the  clerk  of  this  court  for  a  certiorari  of  course  and 
without  special  order,  and  the  plaintiff  in  error  shall  cause  it  to 
be  duly  returned  within  twelve  days,  or  shall  lose  the  benefit 


COURT  OF   ERBOES   AND   APPEALS.  CXXXlii 

thereof,  unless  this  court  shall  see  cause  to  allow  a  further  day 
for  that  purpose,  and  the  time  for  assigning  and  serving  errors 
shall  be  extended  to  thirty  days  after  the  return  of  the  certiorari. 


IX.— OF  THE  HEARING. 

29.  When  a  cause  is  regularly  noticed  for  hearing,  if  the 
appellant  or  the  plaintiff  in  error  (as  the  case  may  be)  shall  not 
appear  to  argue  the  appeal  or  errors  assigned,  the  decree  or  j  udg- 
ment  of  the  court  below  shall  be  affirmed,  with  costs ;  and  if  the 
respondent  or  defendant  fails  to  appear,  the  appellant  or  plaintiflP 
may  proceed  ex  parte. 

30.  The  necessary  papers  in  the  cause  shall  be  read  without 
explanation  or  comment.  After  which  one  of  the  counsel  for 
the  appellant  or  plaintiff  in  error  shall  open  the  cause,  then  two 
counsel  for  the  opposite  party  may  be  heard  in  answer,  and  one 
counsel  only  for  the  opening  party  shall  be  allowed  to  reply ; 
but  in  case  of  an  appeal  from  an  order  or  decree  of  the  Court  of 
Chancery,  in  a  cause  where  there  are  several  defendants  who 
have  separate  and  distinct  interests,  and  who  have  diflPerent 
counsel  concerned  for  them,  the  counsel  for  the  respective  de- 
fendants shall  be  heard  in  such  order  as  the  court  may  direct ; 
but  not  more  than  two  counsel  shall  be  allowed  to  argue  for  any 
one  defendant ;  and  if  more  than  two  counsel  answer  for  the 
defendants,  in  that  case  two  counsel  may  be  heard  in  reply. 

31.  In  the  argument  of  all  causes  there  shall  be  allowed  to 
each  side,  when  but  one  counsel  is  to  be  heard  on  either  side,  the 
period  of  one  hour  ;  when  two  or  more  counsel  are  to  be  heard 
on  each  side,  the  period  of  two  hours,  unless  express  permission 
shall  be  given  for  a  longer  specified  time  before  the  argument  of 
the  cause  is  commenced,  and  the  arguments  shall  then  be  limited 
to  the  time  thus  allowed.  The  presiding  officer  shall  in  all  cases 
enforce  a  strict  observance  of  this  rule.  On  all  arguments  aris- 
ing incidentally  before  the  court,  or  not  before  provided  for,  one 
counsel  shall  be  heard  in  opening  the  matters  in  question  or 


CXXXIV  RULES   OF   THE 

points,  then  two  counsel  for  the  opposite  party  may  answer, 
and  one  counsel  only  for  the  opening  party  shall  be  allowed  to 
reply. 

32.  Immediately  upon  the  close  of  the  argument  of  each 
cause,  the  court  shall  designate  a  time  for  holding  a  conference 
in  relation  to  such  cause. 


X.— OF  DECISIONS  BY  THE  COURT. 

33.  When  a  motion  or  preliminary  or  interlocutory  matter 
has  been  argued  or  submitted  to  the  court,  the  presiding  officer 
shall  distinctly  state  the  point  or  points  to  be  decided,  and  shall 
then  inquire  of  the  court  whether  it  is  ready  to  decide  the  ques- 
tion ;  and  if  no  objection  is  made  by  any  member,  the  president 
shall  ask  each  member  his  opinion,  calling  their  names,  and  also 
expressing  his  own  opinion,  in  such  order  as  he  may  think 
proper,  and  shall  then  announce  the  decision,  as  the  result  may 
be ;  but  if  any  member,  on  the  question  being  put  as  aforesaid 
by  the  president,  shall  request  or  propose  that  the  court  shall 
have  a  consultation  on  the  matter,  the  counsel  and  audience  shall 
withdraw  ;  and  after  the  court  shall  have  conferred  and  advised 
together  of  the  matter,  the  doors  shall  be  opened,  and  then  the 
president  shall,  in  manner  aforesaid,  call  upon  the  members  of 
the  court  for  their  respective  opinions,  and  announce  the  judg- 
ment of  the  court  in  the  matter,  giving  at  the  same  time  his  own 
opinion  thereon.  The  same  course  shall  be  pursued  after  the 
argument  of  a  cause  on  the  merits. 

34.  When  the  decision  of  a  cause  depends  upon  distinct 
questions,  the  decision  of  either  of  which  will  dispose  of  the 
cause,  the  questions  shall  be  taken  separately,  if  required  by 
any  three  members. 

XI.— OF  THE  REMITTITUR. 

35.  The  remittitur  in  case  of  a  writ  of  error  shall  contain  a 
copy  of  the  judgment  of  this  court,  annexed  to  the  writ  of  error 


COUET   OF   ERRORS   AND   APPEALS.  CXXXV 

and  the  transcript  of  the  record  of  proceedings,  as  brought  into 
this  court,  under  its  seal  and  signed  by  the  clerk  ;  and  the  remit- 
titur in  case  of  an  appeal  shall  contain  a  copy  of  the  decree  or 
order  of  this  court  annexed  to  the  petition  of  appeal,  and  the 
matters  thereto  annexed,  as  brought  into  this  court  under  its  seal 
and  signed  by  the  clerk. 

36.  When  a  remittitur  shall  have  been  entered  in  the  office  of 
the  clerk  of  this  court,  the  record  shall  not  be  actually  remitted 
to  the  court  below  until  after  the  expiration  of  ten  days  from 
the  date  of  the  entry  of  the  remittitur,  without  the  special  order 
of  this  court. 

XII.— OF  COSTS. 

37.  The  prevailing  party  shall  be  considered  as  recovering 
costs  in  this  court,  in  which  shall  be  included  costs  of  printing, 
unless  the  court  shall,  in  express  terms,  adjudge  to  the  contrary. 

XIII.— OF  THE  RULES. 

38.  The  rules  of  this  court  shall  be  considered  as  general 
rules  for  the  government  of  the  court  and  the  conducting  of 
causes ;  and  as  the  design  of  them  is  to  facilitate  business  and 
advance  justice,  they  may  be  relaxed  or  dispensed  with  by  the 
court  in  any  case,  where  it  shall  be  manifest  to  the  court  that  a 
strict  adherence  to  them  will  work  surprise  or  injustice. 


RULES 


Prerogative  Court 


NEW  JERSEY. 


I.— OF   PROCTORS. 


1.  All  solicitors  of  the  Court  of  Chancery  shall  be  proctors 
of  this  court. 

II.— OF   APPEALS. 

2.  On  appeal  to  the  Prerogative  Court,  from  the  order,  sen- 
tence or  decree  of  the  Orphans'  Court,  or  from  the  proceedings 
of  a  surrogate,  the  proceedings  shall  be  conducted  by  proctor 
and  counsel,  and  by  guardians  ad  litem  of  minors,  according  to 
the  practice  of  the  Court  of  Chancery,  except  as  hereinafter 
specified.  The  party  appealing  shall  cause  the  transcript  of  all 
the  proceedings  before  the  surrogate  or  Orphans'  Court  to  be 
made,  authenticated  and  returned  to  this  court  within  twenty 
days  from  the  time  of  entering  the  appeal  in  the  court  below,  or 
the  Ordinary  may  dismiss  the  appeal,  unless  further  time  is 
allowed  for  the  return  of  the  transcript ;  the  appellant  shall  also 
file  a  petition  of  appeal,  addressed  to  this  court,  with  the  regis- 
ter, within  fifteen  days  after  the  appeal  is  entered  in  the  court 
below,  or  the  appeal  shall  be  considered  as  waived ;  and  any 
party  interested  in  the  proceedings  in  the  court  below  may  there- 


CXXXVlll  RULES   OF   THE 

upon  apply  to  the  Ordinary  to  dismiss  the  appeal,  with  costs. 
The  petition  of  appeal  shall  briefly  state  the  general  nature 
of  the  proceedings  in  the  court  below,  and  of  the  sentence, 
order  or  decree  appealed  from,  and  shall  specify  the  part  or 
parts  thereof  complained  of  as  erroneous,  except  where  the 
whole  sentence,  order  or  decree  is  alleged  to  be  erroneous,  in 
which  case  it  shall  be  suflScient  to  state  that  the  same,  and  every 
part  thereof,  is  erroneous.  And  where  the  appeal  is  from  the 
sentence  or  decree  of  an  Orphans'  Court,  on  the  settlement  of  the 
accounts  of  an  executor,  administrator  or  guardian,  if  the  appel- 
lant wishes  to  review  the  decision  of  the  Orphans'  Court  as  to 
the  allowance  or  rejection  of  any  particular  items  of  the  account, 
such  items  shall  be  specified  in  the  petition  of  appeal,  or  the  allow- 
ance or  disallowance  of  any  such  item  shall  not  be  considered  a 
sufficient  ground  for  reversing  or  modifying  the  sentence  or 
decree  appealed  from.  The  respondent,  in  his  answer  to  the 
petition  of  appeal  in  such  cases,  may  also  specify  any  items  in 
the  account  as  to  which  he  supposes  the  sentence  or  decree  is 
erroneous,  as  against  him  and  in  favor  of  the  appellant.  And 
upon  the  hearing  of  the  parties  upon  such  appeal,  the  sentence 
or  decree  of  the  Orphans'  Court  may  be  modified  as  to  any  such 
items,  in  the  same  manner  as  if  a  cross  appeal  had  been  brought 
by  such  respondent.  On  an  appeal  from  the  sentence,  order  or 
decree  of  an  Orphans'  Court,  or  proceedings  of  a  surrogate,  the 
appellant,  after  the  petition  of  appeal  and  the  transcript  of  the 
proceedings  in  the  court  below  have  been  filed  with  the  register, 
may  have  an  order  of  course  that  the  respondent  in  the  petition 
of  appeal  answer  the  same  within  twenty  days  after  the  service 
of  a  copy  of  the  petition  of  appeal  and  notice  of  the  order,  or 
that  the  appellant  be  heard  ex  parte.  And  where  the  respondent 
is  an  adult,  upon  filing  an  affidavit  of  such  service  upon  the 
proctor  of  the  respondent,  if  he  has  appeared  either  in  this  court 
or  in  the  court  below  by  a  proctor  of  this  court,  or  upon  the 
surrogate,  if  he  has  not  appeared  by  such  proctor,  and  that  no 
answer  to  the  petition  of  appeal  has  been  received,  the  appellant 
may  have  an  order  of  course  that  the  appeal  be  heard  ex  parte, 
as  against  such  respondent.  Where  the  respondent  is  a  minor, 
if  he  does  not  procure  a  guardian  ad  litem  upon  the  appeal,  to 


PREROGATIVE   COURT.  CXXXIX 

be  appointed  within  twenty  days  after  the  filing  of  the  petition 
of  appeal,  the  appellant  may  apply  to  the  Ordinary  ex  parte  for 
the  appointment  of  such  guardian.  And  if  the  minor  has  ap- 
peared by  his  guardian  ad  litem  in  this  court,  the  appellant  may 
have  an  order  of  course  that  the  guardian  ad  litem  of  the  respond- 
ent answer  the  petition  of  appeal  within  twenty  days  after  ser- 
vice of  a  copy  thereof,  and  notice  of  the  order.  When  a  petition 
of  appeal  is  filed,  if  it  has  not  been  served  on  the  adverse  party, 
the  respondent  may  have  an  order  of  course  that  the  appellant 
deliver  a  copy  of  the  petition  of  appeal  to  the  proctor  or  to  the 
guardian  ad  litem  of  the  respondent  within  ten  days  after  service 
of  notice  of  such  order,  or  that  the  appeal  be  dismissed ;  and  if 
the  same  is  not  delivered  within  the  time  limited  by  such  order, 
the  respondent,  upon  due  notice  to  the  adverse  party,  may  apply 
to  the  Ordinary  to  dismiss  the  appeal,  with  costs. 


III.— OF  APPLICATIONS  FOR  DIVISION   OF 
REAL   ESTATE. 

3.  All  applications  to  the  Ordinary  for  the  division  of  real 
estates  shall  be  by  petition,  and  the  allegations  of  the  said  peti- 
tion shall  be  verified  by  affidavit ;  and  four  weeks'  notice  in 
writing  of  the  intended  application  shall  be  served  on  all  the 
parties  concerned  in  such  real  estate,  who  shall  not  join  in  the 
said  petition,  and  shall  reside  in  this  state,  or  on  the  guardians 
or  fathers  of  such  of  the  said  parties  as  are  minors,  and  who 
shall  reside  in  this  state ;  and  in  case  any  of  the  said  parties  to 
be  notified  as  aforesaid  shall  reside  out  of  this  state,  or  cannot  be 
found  therein,  the  application  shall  be  advertised  for  thirty  days, 
in  such  public  newspaper  or  newspapers  as  the  Ordinary  shall 
direct,  before  persons  shall  be  appointed  to  make  division  of 
the  estate ;  but  in  case  notice  shall  be  served  as  aforesaid  on  the 
parties  not  resident  in  this  state,  the  publication  as  aforesaid  shall 
be  unnecessary. 

4.  The  persons  appointed  to  make  division  of  any  real  estate 
as  aforesaid  shall,  before  they  proceed  to  make  such  division,  be 


Cxl  EULES   OF   THE 

severally  sworn  or  affirmed,  as  the  case  may  require,  that  they 
will  honestly,  faithfully  and  impartially  execute  the  trust  reposed 
in  them,  and  make  division  of  the  estate  to  the  best  of  their 
skill,  knowledge  and  judgment. 

5.  A.  report  of  a  division  of  real  estate,  made  to  the  Ordinary 
at  the  next  Prerogative  Court  after  such  division,  shall  not  be 
approved  of  and  made  conclusive  until  four  days  after  such 
report  shall  be  made  to  the  court,  if  the  said  court  shall  sit  so 
many  days  after  the  making  of  the  said  report. 


IV.— OF  THE  KEGISTER  AND  SURROGATE. 

6.  The  register  of  this  court  and  the  surrogate  of  each  county 
and  masters  of  the  Court  of  Chancery  shall  have  full  power 
and  authority  to  take  affidavits  and  depositions  to  be  used  in 
this  court;  and  every  affidavit  and  deposition  which  shall  be 
made  or  taken  before  the  register  or  before  the  surrogate  of  any 
county  in  this  state  or  a  master  of  the  Court  of  Chancery,  shall 
and  is  hereby  declared  to  be  as  good  and  eflfectual,  to  all  intents 
and  purposes,  as  if  the  same  were  made  or  taken  before  the 
Ordinary  himself. 

v.— OF  PRINTING   EVIDENCE  ON  APPEAL. 

7.  In  case  of  appeal  to  the  Prerogative  Court  from  a  sentence 
or  decree  of  the  Orphans'  Court,  the  party  appealing  shall  cause 
the  evidence  which  has  been  reduced  to  writing  in  the  court 
below,  and  all  exhibits,  decrees,  orders,  petitions,  accounts  and 
other  papers  necessary  to  the  presentation  of  the  question  at 
issue,  if  they  together  exceed  one  hundred  folios  in  length,  to 
be  printed,  and  shall  deliver  a  copy  thereof  to  the  Ordinary,  and 
also  to  the  opposite  party,  at  least  five  days  before  the  time  of 
hearing  the  appeal,  and  on  failure  thereof  the  appeal  shall  be 
dismissed. 


PREROGATIVE   COURT.  Cxli 


VI.— DISMISSAL  OF  APPEAL. 

8.  No  motion  to  dismiss  an  appeal  in  the  Prerogative  Court 
shall  be  heard  unless  five  days'  notice  of  such  motion  has  been 
given,  or  the  proctor  of  the  other  party  is  in  court. 


VII.— CORPORATIONS  AS  TRUSTEES. 

9.  No  corporation,  entitled  by  law  to  execute  trusts  or  to  act 
as  administrator,  guardian,  receiver  or  trustee,  shall  be  appointed 
to  such  office  until  it  shall  have  created  a  fund  to  be  specifically 
set  apart  for,  and  devoted  to  specially  securing  its  liability  in 
such  capacities  of  trust  and  confidence  in  accordance  with  the 
provisions  of  the  third  section  of  the  act  entitled  "A  supplement 
to  the  act  approved  May  sixth,  one  thousand  eight  hundred  and 
eighty- seven,  entitled  'An  act  to  amend  an  act  entitled  'A  sup- 
plement to  an  act  entitled  'An  act  for  the  incorporation  of  safe 
deposit  and  trust  companies,'  approved  April  twentieth,  one 
thousand  eight  hundred  and  eighty-five,'"  which  was  approved 
March  thirteenth,  one  thousand  eight  hundred  and  eighty-eight 
[Pamph.  L.,  1888,  p.  164),  and  shall  have  deposited  with  the 
register  of  this  court  securities  which  shall  represent  the  fund, 
and  shall,  before  its  appointment  to  any  office,  present  to  the 
court  making  such  appointment  a  statement,  under  the  oath  of 
its  president  or  cashier,  that  the  fund  aforesaid  has  been  set  apart 
according  to  law,  and  that  the  above-mentioned  deposit  has  been 
duly  made,  and  that  the  liabilities  of  such  company,  for  which 
the  fund  aforesaid  is  specifically  responsible  (including  all  funds 
and  securities  of  such  trust,  and  with  them  those  about  to  come 
to  it  under  the  appointment  then  in  contemplation),  do  not  exceed 
five  times  the  value  of  such  specifically-created  and  deposited 
fund.  Unless  said  fund  shall  amount  to  or  exceed  one  hundred 
thousand  dollars,  in  which  case  the  affidavit  shall  be  that  the 
liabilities  aforesaid  do  not  exceed  ten  times  the  value  of  such 
specifically-created  and  deposited  fund. 


cxlii  RULES   OF   THE   PREROGATIVE   COURT. 

10.  The  said  securities  shall  be  of  the  character  of  securities 
in  which  trust  funds  may,  by  law,  be  invested,  and  at  the  time 
of  the  deposit  of  them  the  president  or  cashier  of  the  company 
that  makes  the  deposit  shall  make  oath  in  writing,  which  shall 
be  filed  with  the  register  of  this  court,  as  to  the  intrinsic  value 
of  any  property  upon  which  such  securities  shall  then  be  a  lien. 

11.  The  register  of  this  court  shall  receive  the  deposits  of 
securities  made  under  the  requirements  of  the  preceding  rules, 
and  shall  keep  the  same  in  such  manner  as  the  Ordinary  may, 
from  time  to  time,  by  order,  direct. 

12.  The  register  shall  file  together  all  statements  under  oath, 
contemplated  by  rule  9  of  this  court,  and  rule  21  of  the  Orphans' 
Courts,  and  rule  214  of  the  Court  of  Chancery. 


RULES 


Orphans'  Courts 


N  EAV  JERSEY. 


I.— PROBATE  OF   WILL,  OR  ADMINISTRATION. 

1.  The  application  for  probate  of  a  will  or  letters  of  admin- 
istration, or  of  administration  de  bonis  non,  shall  be  in  writing, 
verified  by  affidavit ;  and  such  application  shall  state  the  names 
of  the  heirs  and  next  of  kin  of  the  deceased,  so  far  as  the  same 
are  known,  with  their  residence  or  post-office  address,  and  the 
manner  or  degree  in  which  they  severally  stand  related  to  him 
or  her ;  and  where  such  application  for  administration  is  made 
by  any  person  other  than  the  next  of  kin  or  party  first  entitled, 
or  by  one  of  several  equally  entitled  to  receive  letters  of  admin- 
istration, the  person  making  such  application  shall  produce  to 
the  surrogate  the  renunciation  and  request  of  the  persons  so 
entitled,  that  letters  be  issued  according  to  the  application,  or 
proof  that  at  least  ten  days'  notice  has  been  given  to  the  next 
of  kin  or  parties  by  law  entitled  to  such  administration,  if  any, 
of  such  application ;  which  application,  and  the  renunciation 
and  request,  if  any,  shall  be  recorded  in  a  book  to  be  kept  for 
that  purpose. 

2.  If  the  executor  named  in  any  last  will  shall  not  apply  for 
letters  testamentary  of  such  will  for  forty  days  from  the  death 


Cxliv  RULES   OF   THE 

of  the  testator ;  or  the  next  of  kin  of  any  person  dying  intestate 
shall  not  apply  for  administration  for  forty  days  from  the  death 
of  the  intestate,  the  surrogate  may  grant  letters  testamentary  or 
letters  of  administration,  as  the  case  may  be,  to  any  fit  person 
who  will  accept  the  same,  first  giving  at  least  ten  days'  notice 
to  the  heirs,  widow  or  next  of  kin  of  such  deceased,  or  to  those 
of  them  whose  residence  or  address  he  can  ascertain,  of  his 
intention  so  to  do ;  which  notice  may  be  sent  by  mail,  and  a 
copy  thereof  shall  be  by  him  recorded  upon  the  granting  of 
such  letters. 

3.  Where  administration  has  been  granted  of  an  estate,  and 
afterwards  a  will  shall  be  produced  to  the  surrogate ;  or  where 
probate  of  a  will  shall  have  been  granted,  and  afterwards  a  later 
will  shall  be  produced,  the  surrogate  shall  issue  a  citation  to  all 
persons  interested,  returnable  to  the  Orphans'  Court,  to  show 
cause  why  probate  of  such  will  should  not  be  granted ;  and 
upon  admitting  to  probate  such  will,  the  court  shall  require  the 
administrator  or  prior  executor  to  make  final  settlement  of  his 
account,  and  shall  make  such  order  in  relation  to  the  commis- 
sions as  shall  be  just  and  equitable. 

4.  Upon  application  to  the  surrogate  for  letters  of  adminis- 
tration, he  shall  require  an  affidavit  of  the  value  of  the  estate 
for  administration  of  which  the  application  is  made. 


II.— SETTLEMENT  OF  ACCOUNTS. 

5.  When  exceptions  are  made  to  the  account  of  an  executor, 
administrator,  guardian  or  trustee,  such  exceptions  shall  be  in 
writing;  and  where  the  objections  are  to  disbursements,  they 
shall  state  specifically  the  item  or  items  and  particulars  objected 
to,  and  the  reasons  therefor. 

6.  In  settlement  of  the  accounts  of  trustees  or  guardians  or 
of  executors  who  shall  hold  funds  of  the  estate  of  a  testator,  by 
virtue  of  any  power  or  direction  in  the  will  of  said  testator,  the 
accountant  shall  be  required  to  annex  to  the  account  a  full  state- 


OEPHANS'    COURTS.  Cxlv 

ment  or  list  of  the  securities,  investments  and  assets  of  which 
the  balance  of  the  estate  in  his,  her  or  their  hands  consists,  or  a 
statement  of  all  changes  made  in  the  securities  since  the  filing  of 
the  inventory  or  since  the  last  settlement. 

7.  In  proceedings  for  the  re-settlement  of  the  account  of  an 
executor,  administrator,  guardian  or  trustee,  at  least  ten  days^ 
notice  of  the  intended  application  shall  be  given  to  the  executor, 
administrator,  guardian  or  trustee. 


III.— COMMISSIONS. 

8.  Upon  the  adjustment  of  commissions  between  executors, 
administrators,  guardians  or  trustees,  the  Orphans'  Court  shall 
not  determine  the  matter  upon  the  application  of  some,  or  one 
of  them,  without  proof  that  suflBcient  notice  of  such  application 
has  been  given  to  the  other  or  others. 


IV.— INVESTMENT  OF  MONEYS. 

9.  Executors,  administrators,  guardians  or  trustees  being  re- 
quired to  retain  money  in  their  hands,  shall  put  it  at  interest,  or 
apply  to  the  Orphans'  Court  for  an  order  so  to  do ;  and  in  case 
they  shall  not  be  able  to  find  proper  investment  for  it,  they  shall 
report  the  fact  to  the  court  within  sixty  days  after  they  shall 
have  received  it,  or  after  they  shall  be  required  to  retain  it  or  to 
invest  it ;  and  in  case  of  their  neglect  so  to  do,  they  shall  be 
accountable  for  the  interest  thereon. 


v.— DISTRIBUTION. 

10.  The  Orphans'  Court,  before  decreeing  the  distribution  of 
the  estate  of  any  person  dying  intestate,  shall  require  proof,  on 
oath,  in  writing,  of  the  names  of  the  wife  and  children,  if  any, 
or  other  next  of  kin  of  the  intestate,  and  how  and  in  what  degree 
such  other  next  of  kin  are  related ;  which  proof  may  be  made 

10 


cxlvi  EULES   OF   THE 

by  the  administrator  or  any  one  having  knowledge  of  the  family 
and  next  of  kin  of  deceased,  and  by  affidavit,  unless  the  court 
shall  require  further  or  other  proof. 

VI.— DISCHARGE  OF  EXECUTOR,  GUARDIAN  OR 

TRUSTEE. 

1 1 .  An  executor  or  administrator  seeking  to  be  discharged 
from  the  further  duties  of  his  office,  shall  give  to  all  the  parties 
interested  in  the  estate  of  which  he  is  such  executor  or  adminis- 
trator, or  to  such  of  them  as  the  court  shall  direct,  at  least  thirty 
days'  notice,  in  writing,  of  his  intended  application  to  the 
Orphans'  Court  for  such  discharge,  unless  the  Orphans'  Court, 
for  good  cause  appearing,  shall  otherwise  order ;  and  where  any 
of  the  said  parties  shall  reside  outside  of  this  state,  such  notice 
may  be  given  by  mailing  the  same  to  their  post-office  address. 
Guardians  seeking  to  be  discharged  from  their  trust  shall  give 
like  notice  in  like  manner  to  their  wards  and  the  next  of  kin  of 
their  wards,  or  to  such  of  them  as  the  court  shall  direct ;  and 
trustees  seeking  to  be  discharged  from  their  trust  shall  give  like 
notice  in  like  manner  to  their  cestui  or  cestuis  que  trust.  If  a 
cestui  que  trust  be  a  minor,  or  non  compos  mentis,  notice  shall  be 
given  to  the  guardian,  if  any,  and  if  none,  to  the  next  of  kin, 
or  such  of  them  as  the  court  shall  direct. 

VII.— SALE   OF   LANDS. 

12.  Where  application  for  the  sale  of  lands  to  pay  debts  shall 
be  made  to  the  Orphans'  Court  of  any  county  other  than  the 
county  in  which  letters  of  administration  or  probate  of  the  will 
shall  have  been  granted,  the  executor  or  administrator  making 
such  application  shall  present  to  said  Orphans'  Court  a  certified 
copy  of  the  will  and  of  the  letters  testamentary  issued  thereon, 
or  of  the  letters  of  administration,  and  also  a  certified  copy  of 
the  inventory  of  the  personal  estate  of  the  testator  or  intestate ; 
which  copy  of  letters  testamentary  and  will  and  inventory,  or  of 
letters  of  administration  and  inventory,  shall  be  filed  by  the 
surrogate  of  the  county  in  which  such  application  is  made. 


OEPHANS'   COURTS.  Cxlvii 

13.  Where  the  heirs  of  an  intestate,  or  the  heirs  or  devisees 
of  a  testator,  shall  have  given  bond  to  the  executor  or  adminis- 
trator, with  the  approval  of  the  court,  upon  the  return  of  the 
rule  to  show  cause  for  the  sale  of  lands  for  the  payment  of  debts, 
the  court  shall,  before  making  any  order  for  the  prosecution  of 
the  bond  or  for  the  sale  of  the  lands,  require  proof  of  the  service 
of  a  notice  upon  such  heirs  or  devisees  and  their  sureties,  if  they 
be  still  living  and  resident  in  this  state,  or,  if  dead,  on  their 
executors  or  administrators,  if  any  they  have  in  this  state,  or  on 
some  one  or  more  of  them,  of  the  intended  application  for  such 
order. 

14.  The  notice  to  an  executor  or  administrator  of  an  applica- 
tion by  a  creditor,  requiring  him  to  take  proceedings  to  sell  lands 
to  pay  debts,  shall  be  served  on  such  executor  or  administrator 
at  least  ten  days  before  the  day  therein  named  for  making  the  said 
application  ;  and  the  Orphans'  Court  may,  by  citation  or  other 
process,  require  the  executor  or  administrator  to  appear  before 
them  and  testify  as  to  the  amount  of  the  personal  estate  and 
debts  of  the  deceased. 

15.  All  applications  to  the  Orphans'  Court  for  the  sale  of 
lands,  and  all  reports  of  such  sales  to  said  court,  shall  be  veri- 
fied by  the  oath  or  affirmation  of  the  party  making  the  same. 


VIII.— SALE  OF  LANDS  BY  GUARDIANS- 
SECURITY. 

16.  The  Orphans'  Court,  on  granting  an  order  to  a  guardian 
to  sell  land  or  timber  on  the  land  of  his  ward,  shall  examine  as 
to  the  sufficiency  of  the  bond  of  the  guardian  previously  given, 
and  if,  in  their  judgment,  said  bond  is  insufficient,  they  shall 
require  the  guardian  to  give  such  additional  bond  for  the  faithful 
execution  of  his  office  as,  in  their  judgment,  shall  be  adequate. 


CXlviii  EULES   OF   THE 

IX.— PARTITION. 

17.  The  notice  of  application  upon  proceedings  in  partition, 
where  there  is  a  minor  or  minors  not  having  a  guardian,  shall 
be  served  upon  the  father  or  mother,  and,  if  there  be  no  father 
or  mother,  then  on  one  or  more  of  the  next  of  kin  of  full  age, 
if  any  residing  in  this  state,  of  such  minor  or  minors ;  and  it 
shall  be  the  duty  of  the  court,  in  all  such  cases,  to  appoint  a 
guardian  ad  litem  for  every  such  minor. 

X.— DOWER. 

18.  The  notice  of  the  intended  application  to  the  Orphans' 
Court  for  the  appointment  of  commissioners  to  assign  dower  to 
a  widow,  in  any  lands  or  real  estate  in  which  any  minors  or 
minor,  residing  in  this  state,  and  not  having  a  guardian,  may  be 
interested,  shall  be  served  on  the  father  or  mother,  and,  if  there 
be  no  father  or  mother,  then  on  one  or  more  of  the  next  of  kin 
of  full  age,  of  the  minor  or  minors,  if  there  be  any  residing  in 
this  state;  and  if  such  application  is  made  by  the  mother  of 
such  minor  or  minors,  then  the  notice  shall  be  served  on  one  or 
more  of  the  next  of  kin  of  the  minor  or  minors,  of  the  blood 
of  the  father,  if  any  such  there  be  residing  in  this  state,  and,  if 
none,  then  on  one  or  more  of  the  next  of  kin  on  the  side  of  the 
mother ;  and  it  shall  be  the  duty  of  the  court,  in  all  such  cases, 
to  appoint  a  guardian  ad  litem  for  such  minor  or  minors. 

XI.— NOTICES. 

19.  There  shall  be  at  least  ten  days'  service  of  all  notices  and 
rules  to  show  cause  and  process,  except  where  otherwise  provided. 

20.  The  notice  required  to  be  given  by  sections  59  and  82 
of  the  Orphans'  Court  act  shall  be  given  by  setting  up  and 
publishing  a  notice  stating  that  the  order  has  been  made,  at 
what  time  (its  date),  on  whose  application,  in  what  court  and 
what  directions  are  thereby  given,  and  not  by  setting  up  and 
publishing  a  copy  of  the  order. 


orphans'  courts.  cxlix 

XII.— CORPORATIONS  AS  TRUSTEES. 

21.  No  corporation,  entitled  bj  law  to  execute  trusts  or  to 
act  as  administrator,  guardian,  receiver  or  trustee,  shall  be  ap- 
pointed to  such  office  until  it  shall  have  created  a  fund  to  be 
specifically  set  apart  for  and  devoted  to  specially  securing  its 
liability  in  such  capacities  of  trust  and  confidence  in  accordance 
with  the  provision  of  the  third  section  of  the  act  entitled  "A 
supplement  to  the  act  approved  May  sixth,  one  thousand  eight 
hundred  and  eighty- seven,  entitled  'An  act  to  amend  an  act  en- 
titled "A  supplement  to  an  act  entitled  'An  act  for  the  incorpo- 
ration of  safe   deposit  and   trust  companies,'  approved  April 
twentieth,  one  thousand  eight  hundred  and  eighty-five,' "  which 
was  approved  March  thirteenth,  one  thousand  eight  hundred 
and  eighty-eight  {Pamph.  L.,  1888,  p.  164),  and  shall  have  de- 
posited with  the  register  of  the  Prerogative  Court,'  according  to 
the  scheme  prescribed  by  rules  nine,  ten,  eleven  and  twelve  of 
that  court,  securities  which  shall  represent  the  said  fund,  and 
shall,  before  its  appointment  to  any  such  office,  present  to  the 
court  making  the  appointment  a  Statement,  under  the  oath  of  its 
president  or  cashier,  that  the  fund  aforesaid  has  been  set  apart 
according  to  law,  and  that  the  above-mentioned  deposit  has  been 
duly  made,  and  that  the  liabilities  of  such  company,  for  which 
the  fund  aforesaid  is  specifically  responsible  (including  all  funds 
and  securities  of  such  trusts,  and  with  them  those  about  to  come 
to  it  under  the  appointment   then  in  contemplation),  do   not 
exceed  five  times  the  value  of  such  specifically-created  and  de- 
posited fund.     Unless  such  fund  shall  amount  to  or  exceed  one 
hundred  thousand  dollars,  in  which  case  the  affidavit  shall  be 
that  the  liabilities  aforesaid  do  not  exceed  ten  times  the  value  of 
such  specifically- created  and  deposited  fund.     The  said  statement 
shall,  within  thirty  days  after  such  appointment,  be  transmitted 
by  the  clerk  of  the  court  by  which  the  appointment  shall  be 
made,  to  the  register  of  the  Prerogative  Court. 

22.  Upon  being  appointed  to  any  such  office  the  corporation 
shall  give  bond,  but  without  surety,  similar  to  the  bond  that  a 


Cl  RULES  OF   THE 

natural  person  would  be  obliged  to  give  if  he  or  she  were  ap- 
pointed to  such  office. 

XIII.— NOTICE  OF  APPLICATION  FOR 
APPOINTMENT  OF  TRUSTEE. 

23.  When  any  trustee,  heretofore  or  hereafter  appointed  by 
last  will,  shall  neglect  or  refuse  to  act,  or  shall  die  before  the 
execution  and  completion  of  the  trust  committed  to  him,  and 
any  interested  person  shall  intend  to  apply  to  the  Orphans^ 
Court  of  the  county  where  the  testator  resided  at  the  time  of  his 
death  for  the  appointment  of  a  suitable  person  or  of  suitable 
persons  to  execute  such  trust,  the  person  intending  to  make  such 
application  shall  give,  to  all  persons  interested  in  the  execution 
of  such  trust,  or  to  such  of  them  as  the  court  shall  by  its  order 
direct,  when  they  reside  in  this  state,  at  least  ten  days'  notice, 
in  writing,  of  such  intended  application ;  and  when  any  of  said 
parties  shall  reside  out  of  this  state  the  notice  shall  be  given,  by 
personal  service,  either  within  or  without  this  state,  or  by  mail- 

•  ing  the  same  to  said  parties  at  their  respective  post-office  ad- 
dresses, at  least  thirty  days  Before  the  day  designated  in  the 
notice  for  making  such  application.  If  any  cestui  que  trust  be 
a  minor  or  non  compos  mentis,  notice  shall  be  given  to  his  or  her 
guardian,  if  any,  and  if  none,  to  his  or  her  next  of  kin,  or  such 
of  them  as  the  court  shall  by  its  order  direct. 

XIV.— OF  THE  APPOINTMENT  OF  A  GUARDIAN 
AD  LITEM. 

24.  Whenever  it  shall  be  necessary,  in  any  cause  or  proceeding 
in  the  Orphans'  Court,  that  a  guardian  ad  litem  for  an  infant  party 
thereto  should  be  appointed,  a  petition  may  be  presented  by  the  in- 
fant, if  above  the  age  of  fourteen  years,  or,  if  under  that  age,  by 
his  guardian,  appointed  by  the  Orphans'  Court,  father  or  some 
other  friend  in  his  behalf,  praying  such  appointment.  Annexed 
to  the  petition  there  shall  be  an  agreement,  by  the  person  peti- 
tioned for,  to  accept  the  appointment,  and  also  an  affidavit  that 
the  petition  and  agreement  were  duly  signed  by  the  persons 
purporting  to  sign  them,  and  verifying  the  age  of  the  infant. 


orphans'  courts.  cli 

Or,  if  no  such  application  shall  be  made  by  or  on  behalf  of 
the  infant,  within  five  days  after  the  service  upon  him  of  the 
citation  or  other  authoritative  command  of  the  court,  to  appear, 
<fec.,  the  said  court  may,  on  application  on  behalf  of  the  party 
instituting  or  prosecuting  the  proceedings,  by  its  order,  assign  a 
guardian  ad  litem  for  said  infant,  but  ten  days'  notice  of  such 
application  must  be  given  to  the  infant,  if  of  the  age  of  fourteen 
years  and  resident  within  this  State,  or,  if  under  that  age,  or 
not  a  resident  in  this  State,  to  his  guardian,  appointed  by  the 
Orphans'  Court,  if  any  there  be,  and,  if  no  such  guardian,  to  the 
father  of  such  infant,  or,  if  no  father,  then  to  the  mother, 
and,  if  no  mother,  to  the  person  standing  in  loco  parentis  to  the 
infant,  provided  such  guardian,  father  or  mother,  &c.,  be  resi- 
dent in  this  State,  which  notice  may  be  served  at  the  time  of 
service  of  the  process  of  citation  or  at  any  time  thereafter. 


Forms  of  Pleadings. 


GENERAL   FORMS   OF   ADDRESSES,  COMMENCEMENTS   AND   CON- 
CLUSIONS  OF   SUITS   BY   BILL   OR   INFORMATION, 
AND   MANNER  OF   VERIFICATION. 


A  suit  in  the  Court  of  Chancery  is  commenced  by  filing  a 
bill.(a) 

The  parts  of  an  original  bill  are  distinguished  as  follows : 

I.— THE  ADDRESS.(6) 

In  Chancery  of  New  Jersey. 
To  his  Honor,  ,  Chancellor  of  the  State  of  New  Jersey. 

In  United  States  Circuit  Court.(c)  To  the  Judges  of 
the  Circuit  Court  of  the  United  States  for  the  District  of  New 
Jersey. 

(a)  The   rule   requiring   bills   and  actually  received.    The  rule  permits 

other  proceedings  intended  to  be  filed  typewritten  copies  of  pleadings,  &c., 

to    be    fairly    and     legibly    written,  to  be  filed,  but  not  manifold  copies  on 

should  be  strictly  observed.     As  all  thin  paper. 

the  proceedings  in  the  cause  are  en-  (6)  The  form  of  the  address  is  the 

rolled,  that  accuracy  essential  to  the  same  for  bills  and  petitions, 

record  of  a  court  of  justice  cannot  be  When  the  Chancellor  is  a  party,  he 

secured  unless  the  papers  are  drawn  should  be  designated   by  the  name  of 

with    care.      The   bill    being    fairly  his  office  only,  in  the  process  and  in 

written,  is  to  be  filed  with  the  clerk  all  the  proceedings.  See  Chancery  rule 

of  the  court.     All  papers  are  filed  by  160. 

the   clerk   as   of   the   time   they   are  (c)  U.  S.  Court  Equity  rule. 


FORMS   OF    PLEADINGS. 


In    County   Circuit    Courts,  in    foreclosure    cases. 
Mercer   County  Circuit   Court.     In   equity.     To   his    Honor, 
,  Judge  of  the   Circuit   Court  of  the   County   of 
Mercer. 

II.— THE  INTRODUCTION.(a) 

General  form.  Complaining,  shows  unto  your  Honor, 
your  orator,  A  B,  of  the  city  of  Newark,  in  the  county  of  Essex, 
and  State  of  New  Jersey,*  that,  &c. 

Circuit  Courts  of  the  United  States.  A  B,  of  , 
and  a  citizen  of  the  State  of  ,  brings  this  his  bill  against 

C  D,  of  ,  and  a  citizen  of  the  State  of  ,  and  there- 

upon your  orator  complains  and  says,  that,  &c. 

Husband  and  wife.  Complaining,  show  (as  in  general 
form  to  *),  and  C  B,  his  wife. 

Wife  suing  alone.  Complaining,  &c.,  A  B,  of,  &c.,  wife 
of  TB. 


(a)  It  is  not  only  necessary  that  the 
names  of  the  several  complainants  in 
a  bill  should  be  correctly  stated,  but 
the  place  of  residence  of  each  com- 
plainant must  be  set  out,  in  order  that 
the  court  and    the  defendants  may 
know  where  to  resort  to  compel  obedi- 
ence to  any  order  or  process  of  the 
court,  and  particularly  for  the  pay- 
ment of    any   costs    which    may   be 
awarded  against  the  complainants  or 
to  punish  any  improper  conduct   in 
the  course  of  the  suit.     1  Dan.  Ch. 
Pr.  {4:th  ed.)  357.    Formerly,  it  seems, 
by  the  English  practice,  a  demurrer 
would  lie  to  a  bill  which  did  not  state 
the  place  of  residence  of  complainant, 
or,  if  untruly   stated,   the   defendant 
might  take  advantage  thereof  by  plea. 
Hoive  V.  Harvey,  8  Paige  74  ;  and  see 
Winnipiseogee  Lake  Co.  v.  Worslei;  9 
Fost.  443.    The  modern  practice,  how- 
ever, in  such  cases,  is  not  to  demur  or 


plead  to  the  bill,  but  to  apply  to  the 
court  that  the  complainant  give  se- 
curity for  costs,  and  that,  in  the  mean- 
time, proceedings  in  the  suit  may  be 
stayed.  Howe  v.  Harvey,  supra,  and 
cases  there  cited.  Where  complainant 
appears  'to  have  no  permanent  resi- 
dence, he  can  be  made  to  give  security 
for  costs.  Kerr  v.  Gillespie,  7  Beav. 
269;  Watts  v.  Kelly,  6  W.  R.  206; 
and  see  title  "Security  for  Costs,"  infra. 
As  to  a  change  in  address  of  com- 
plainant after  bill  filed,  see  Kerr  v. 
Gillespie,  7  Beav.  269.  In  equity,  all 
suits  must  be  in  the  name  of  the  party 
really  interested,  and  when  the  name 
of  an  agent  or  trustee  is  used,  the 
cestui  que  trust  must  be  made  com- 
plainant with  him.  Nichols  v.  Wil- 
liams, 7  a  E.  Gr.  64 ;  Stillwell  v.  Mc- 
Neely,  1  G.  C.  B.  305;  Willink  v. 
Morris  Canal  Co.,  3  G.  C.  B.  397; 
Tyson  v.  Applegate,  13  Stew.  Eq.  305. 


BILLS  :    THEIR   SEVERAL   PARTS.  3 

Wife    by    next    friend: (a)    husband    a    defendant. 

Complaining,  shows,  &o.,  C  IB,  of,  &c.,  the  wife  of  the  defend- 
ant, A  B,  by  C  L,  of,  &c.,  her  next  friend. 


Infants. (6)     Complaining,  show,  &c.,  A  B  and  C  B,  infants 
under  the  age  of  twenty-one,  by  H  K,  of,  &c.,  their  next  friend. 


(a)  Where  the  husband  files  a  bill 
in  relation  to  his  .own  rights,  if  his 
wife  is  a  necessary  party,  by  reason  of 
a  judgment  or  decree  in  favor  of  the 
husband  and  wife,  which  is  a  lien  upon 
the  property  of  the  defendant,  and  in 
a  case  where  all  the  encumbrancers 
must  be  before  tiie  court,  the  wife  may 
be  joined  with  lier  husband  as  a  com- 
plainant. Clarkson  v.  De  Peyster,  3 
Paige  336.  On  a  bill  filed  by  a  wife 
for  the  protection  of  her  separate 
property  against  creditors  of  the  hus- 
band, when  the  bill  is  exhibited  and 
sworn  to  by  the  husband  as  the  next 
friend  of  the  wife,  but  he  is  not  joined 
as  a  party  in  the  bill,  either  as  com- 
plainant or  defendant — held,  that  the 
husband  cannot  legally  be  joined  as 
complainant,  his  interest,  which  is 
claimed  by  defendant,  being  adverse 
to  that  of  his  wife.     Johnson  v.  Vail, 

.  1  McCart.  423  The  practice,  where 
the  husband  improperly  joins  with 
the  wife  as  complainant,  is  not  to  dis- 
miss the  bill,  but  to  give  permission 
to  the  wife  to  amend  by  adding  a  next 

Jriend,  and  making  the  husband  a  de- 
fendant. Ibid.;  Barrett  v.  Doughty, 
10  C.  E.  Gr.  380.  To  a  suit  brought 
by  a  married  woman  for  relief,  in 
respect  of  her  separate  estate,  her  hus- 
band is  not  a  necessary  or  proper 
party  complainant.  Tantum  v.  Cole- 
man, 11  C.  E.  Gr.  128.  The  husband 
is  a  necessary  party  defendant  in  such 
case.  Johnson  v.  Vail,  supra;  Tun- 
nard  v.  Littell,  8  C.  E.  Gr.  264.  Two 
complainants,  with  distinct  causes  of 


action,  alleging  distinct  injuries,  can- 
not unite  in  the  same  bill.  Hendrick- 
son  v.  Wallace,  4  Stew.  Eq.  604.  To 
authorize  them  to  join  as  complain- 
ants, their  causes  of  action  must  be  the 
same,  the  injury  the  same,  and  they 
must  be  entitled  to  the  same  remedy. 
Plum  v.  Morris  Canal  Co.,  2  Stock. 
256 ;  see  rule  131 ;  Story's  Eq.  PL,  I 
286;  Annin  v.  Annin,  9  C.  E.  Gr.  188. 
Persons  having  adverse  or  conflicting 
interests,  in  reference  to  the  subject- 
matter  of  the  litigation,  ought  not  to 
join  as  complainants  in  the  suit. 
Johnson  v.  Vail,  1  McCart.  423.  It 
has  been  the  practice,  heretofore,  for 
married  women  to  sue  by  their  next 
friend.  Since  the  statute  "  Married 
Women"  (^e^;.,  p.  638,  ^  11),  it  has 
been  repeatedly  held  that  she  may  sue 
in  her  own  name,  without  the  inter- 
vention of  a  next  friend. 

In  the  case  of  a  married  woman 
suing  by  her  next  friend,  it  is  usual, 
but  not  essential,  to  set  out  the  address 
of  the  married  woman,  but  the  address 
of  the  next  friend  must  be  stated. 
1  Dan.  Ch.  Pr  359. 

Where  a  bill  was  filed  by  husband 
and  wife  in  respect  to  the  wife's  sepa- 
rate estate,  objections  to  the  joinder  of 
the  husband  as  co-complainant  with 
his  wife  made  on  final  hearing  will 
not  prevail.  An  amendment  may  be 
ordered.  Paulison  v.  Van  Iderstine,  1 
Stetv.  Eq.  306. 

(6)  Where  a  bill  is  filed  on  behalf 
of  an  infant  or  person  of  unsound 
mind  not  so  found,  it  is  not  necessary 


FOEMS   OF    PLEADINGS. 


Lunatics, (a)  &C.  Complaining,  &c.,  A  B,  of,  &c.,  a  lunatic, 
by  R  G,  of,  &c.,  his  guardian  {or  next  friend,  where  complain- 
ant is  of  unsound  mind,  but  not  so  found  by  inquisition,)  that,  &c. 


or  usual  to  describe  the  complainant 
by  his  place  of  residence,  because  an 
infant  or  person  of  unsound  mind  is 
not  responsible  either  for  costs  or  for 
the  conduct  of  the  suit ;  the  descrip- 
tion and  place  of  residence  of  the  next 
friend    must,   however,    be    set    out. 
Braitkwaite' s  Pr.  25 ;  1  Dan.  Ch.  Pr. 
359.     If  a  bill  is  filed  by  an  infant, 
without  a  next  friend,  the  defendant 
may  move  to  have  it  dismissed,  with 
costs,   to    be    paid    by   the   solicitor. 
Where,  however,  a  bill  was  filed  by 
the  complainant,  as  an  adult,  and  it 
was  afterwards  discovered  that  he  was 
an  infant  at  the  time  of  filing  the  bill, 
and  still  continued  so,  whereupon  the 
defendant  moved  that  the  bill  might 
be  dismissed,  with  costs,  to  be  paid  by 
complainant's    solicitor,    the    V.    C. 
made  an  order  that  the  complainant 
should  be  at  liberty  to  amend  his  bill, 
by  inserting  a  next  friend.     Flight  v. 
Bolland,  4  Russ.  298.     An  infant  may 
sue  by  his  next  friend,  notwithstand- 
ing he  have  a  guardian,  if  the  guardian 
do  not  dissent.     Thomas  v.  Dike,  11 
Vt.  273 ;  see  Trask  v.  Stone,  7  Mass. 
241.      Although    an     infant     has     a 
guardian  assigned  him  by  the  court 
or  appointed  by  will,  yet,  where  the 
infant  is  complainant,  the  course  is, 
not  to  call  the  guardian  by  that  name, 
but  to  call   him  the  next  friend.     The 
rule  is  otherwise,  where  the  infant  is 
defendant.     1   Dan.  Ch.  Pr.  69.     In 
Harrison  v.  Harrison,   5   Beav.   130, 
Lord  Langdale,  M.  R.,  observed  that, 
"  any  person  may  commence  a  suit  as 
next  friend  of  an  infant."     It  seems 
tliat,  by  statute,  in  England,  before  the 
name  of  any  person  is  used  as  the  next 


friend  of  an  infant,  he  must  sign  a 
written  authority  to  the  solicitor  for 
that  purpose;  which  authority  is  filed 
with  the  bill.  15  and  16  Vic.,  ch.  86, 
§  11.  It  was  provided  by  statute  in 
New  York,  that  before  any  process 
should  issue,  in  the  name  of  an  infant 
who  is  sole  plaintifi^  in  any  suit,  a  next 
friend  should  be  appointed  by  the 
court,  who  shall  be  responsible  for  the 
costs,  and  it  has  been  held  that  the 
power  of  the  court  extended  to  those 
infants  who  were  joined  with  adult 
complainants.  In  re  Fritts,  2  Paige 
375.  In  Priest  v.  Hamilton,  2  Tyler 
49,  the  court  says :  "  The  court  will 
appoint  a  guardian  for  an  infant  de- 
fendant from  the  urgency  or  necessity 
of  the  case ;  but  this  urgency  or 
necessity  does  not  reach  the  case 
where  an  infant  is  plaintiff;  the  court, 
therefore,  never  appoints  a  guardian 
to  prosecute,  but  only  to  defend  an 
infant  party." 

(o)  Idiots  and  lunatics  must  sue  in 
equity  by  their  committees  or  guard- 
ians—in this  state  by  their  guardians. 
Dorsheimer  v.  Rorback,  3  C  E.  Or. 
439 ;  and  see  Norcom  v.  Rogers,  1  C.  E. 
Or.  484.  A  bill  filed  in  the  name  of 
an  idiot  by  a  volunteer,  styling  him- 
self her  next  friend,  not  appointed 
her  guardian  upon  inquisition  found, 
nor  authorized  by  the  court  to  file  the 
bill  as  her  next  friend,  will  be  dis- 
missed on  motion  of  the  defendant. 
Ibid. 

A  lunatic  may  sue  by  the  attorney- 
general  or  next  friend  where  the  in- 
terests of  the  guardian  clash  with 
those  of  the  lunatic.  Norcom  v.  Rogers, 
1  a  E.  Or.  484. 


BILLS  :    THEIR  SEVERAL   PARTS. 


Corporation.  Complaining,  &c.,  the  Trenton  Banking 
Company,*  a  corporation  created  by,  and  existing  under,  the 
laws  of  the  State  of  New  Jersey,  (or  "a  corporation  of  this 
State.") 

Railroad  corporation.  &c.,  the.  Delaware  and  Bound 
Brook  Railroad  Company,  (as  above  after  *)  &c. 

Foreign  corporation. (a)  Complaining,  etc.,  the  Mutual 
Life  Insurance  Company,  a  corporation  created  by,  and  existing 
under,  the  laws  of  the  State  of  New  York,  that,  &c. 

Creditor  suing  on  behalf  of  himself  and  others.  (6) 
Complaining,  &c.,  A  B,  of,  &c.,  on  behalf  of  himself  and  all 
other  unsatisfied  creditors  of  E  F,  of,  &c.,  who  shall  come  in 
and  contribute  to  the  expenses  of  this  suit,  that,  &c. 

Executors  or  administrators. (c)    Complaining,  &c.,  A 


(a)  It  is  not  incumbent  on  a  foreign 
corporation  complainant  to  prove  its 
corporate  existence,  when  the  answer 
raises  no  question  as  to  its  existence 
or  right  to  sue,  but  sets  up  a  defence 
to  the  merits  alone  Washington  Life 
Ins.  Co.  y.  Paterson  Manvf.  Co.,  10  C. 
E.  Gr.  160.  An  answer  which  admits 
that  a  mortgage  was  issued  to  the 
complainant,  a  corporation,  of  "  the 
purport  and  effect  set  forth  in  the 
bill  "  does  not  raise  any  issue  as  to 
the  corporate  existence  of  such  com- 
plainant, or  its  capacity  to  take  such 
mortgage.  Butterfield  v.  Third  Ave. 
■  Bank,  10  C.  E.  Gr.  583. 

(6)  Where  a  plaintiff  sues  on  be- 
half of  himself,  and  of  others  of  a 
similar  class,  it  should  be  so  stated 
in  this  part  of  the  bill,  and  the  omis- 
sion of  such  a  statement  will,  in  many 
cases,  render  a  bill  liable  to  objection 
for  want  of  parties,  and  in  other  cases 
Avill  deprive  the  plaintiff  of  his  right 
to  the  whole  of  the  relief  he  seeks. 
Dan.  Ch  Pr.  360.     A  judgment  and 


execution  creditor  cannot  unite  with 
a  general  creditor.  Uaggerty  v.  Nixon, 
11  C.  E.  Gr.  42;  Fleischman  v.  Young, 
1  Stock.  622.  Where  the  demands 
of  several  complainants,  united  in  the 
same  bill,  are  entirely  distinct  and 
independent,  where  there  is  no  privity 
between  them  ;  no  general  right  to  be 
established  as  against  the  defendant ; 
no  common  interest  in  all  the  com- 
plainants ;  no  general  right  claimed 
by  the  bill,  and  covering  the  whole 
case;  no  rights  established  in  favor  of 
complainants ;  and  no  demand  made 
that  the  funds  of  the  defendant  shall 
be  applied  to  the  payment  of  the  com- 
plainants' claims,  after  their  adjust- 
ment ;  and  where  their  claims  are  not 
in  rem,  but  in  personam,  the  bill  can- 
not be  sustained.  Marselis  v.  Morris 
Canal  Co.,  Sax.  35. 

(c)  A  bill  filed  by  administrators 
must  allege  that  their  intestate  is  dead, 
and  that  letters  of  administration  have 
been  issued  to  them.  Stover  w.  Beading, 
2  Stew.  Eq.  153.     It  must  show  that 


FORMS   OF   PLEADINGS. 


B  and  C  D,  of,  {residence,)  as  executors  of  the  last  will  and  tes- 
tament of  G  H,  deceased,  (or  administrators  of  the  goods  and 
chattels,  rights  and  credits  which  were  of  G  H,  late  of,  &c., 
deceased.) 

Attorney-general  on  behalf  of  the  state. (a)  Inform- 
ing, shows  unto  your  Honor,  your  informant,  J  P  S,  attorney- 


the  action  is  brought  by  the  complain- 
ant in  his  representative  capacity, 
and  not  as  an  individual.  Uright  v. 
Currie,  5  Sandf.  433  ;  Sheldon  v.  Soy^ 
11  How.  Pr.  11.  In  suits  brought  by 
executors,  the  rule  in  equity  is,  that 
only  the  executors  who  have  proved 
the  will  must  be  parties.  Rinehart's 
Ex'rs  V.  Rinehart.  2  McCart.  44.  To 
enable  an  executor  to  maintain  a  suit 
in  this  court,  it  is  necessary  that  the 
fact  of  the  probate  of  the  will  should 
be  stated  in  the  bill.  Pelletreau,  Ex'r, 
v.  JRathbone,  Sax.  331.  It  is  not  neces- 
sary for  him  to  set  forth  his  letters 
testamentary.  Telfair- y.  Stead^s  Ex'rs, 
2  Oranch  408.  Alleging  in  the  bill 
that  the  complainant  hath  taken  upon 
himself  the  bur. hen  of  executing  the 
trusts  and  duties  required  of  him  by 
the  bill,  and  become  duly  qualified  as 
executor,  is  not  sufficient.  Pelletreau, 
Ex'r,  v.  Rathbone,  supra.  Stating  in 
the  bill  that  the  will  has  been  duly 
proved  in  the  State  of  New  Jersey, 
might  be  sufficient,  without  specify- 
ing whether  such  proof  was  in  either 
of  the  Orphans'  Courts,  or  before  the 
Ordinary.  Ibid.  It  is  a  general  rule 
that  executors  and  administrators  can 
sue  and  be  sued  as  such,  only  in  the 
state  in  which  they  were  appointed. 
McNamara  v.  Dwyer,  7  Paige  239. 
A  foreign  executor  or  administrator 
before  bringing  suit  must  file  with  the 
clerk  an  exemplified  copy  of  his 
letters.  P.  L.  1887,  p.  154.  Before 
he  can  be  substituted  in  the  place  of 


the  testator  or  intestate  who  brought 
the  suit,  he  must  file  an  exemplified 
copy  of  the  record  of  his  appointment. 
P.  L  1888,  p.  473.  An  administra- 
trix cannot  be  made  a  party  com- 
plainant in  a  bill  witli  her  co-admin- 
istrators, without  her  consent,  and  if 
she  claim  adversely  to  the  prayer  of 
the  bill,  the  court,  upon  motion,  will 
direct  her  name  to  be  stricken  from 
the  bill  as  complainant,  and  to  be  in- 
serted as  a  defendant.  Dare's  Adm'rs 
V.  Allen's  Ex'r,  1  G.  C.  R.  288.  If  an 
executor,  before  probate,  file  a  bill 
alleging  that  he  has  proved  the  will, 
such  allegation  will  obviate  a  de- 
murrer ;  he  must,  however,  prove  the 
will  before  the  hearing  of  the  cause, 
and  then  the  probate  will  be  sufficient 
to  support  the  bill,  although  it  bear 
date  subsequently  to  the  filing  of  it. 
Humphreys  v.  Ingledon,  1  P.  Wms. 
752,  note.  The  same  rule  applies  to 
administrators.  Fell  v  Luiwidgey 
Barn.  320 ;  Humphreys  v.  Humphreys, 
3  P.  Wms.  351 ;  Langdon  v.  Potter,  11 
Mass.  313. 

(a)  Where  the  suit  immediately 
concerns  the  rights  of  the  State,  the 
information  is  generally  exhibited 
without  a  relator.  Att'y-Gen.  v.  Del. 
&  B.  B.  R.  Co.,  12  C.E.  Gr.  5,  and 
cases  cited.  While  in  practice  it  is 
usual  to  name  a  relator,  and  the  con- 
trary course  may  tend  to  oppression, 
since,  if  there  is  no  relator,  the  de- 
fendant can  recover  no  costs,  still  in 
matters  of  purely  public  concern — as 


BILLS  :    THEIR   SEVERAL   PARTS.  7 

general  of  the  State  of  New  Jersey,  on  behalf  of  the  said  state, 
that,  &c. 

Same,  where  there  is  a  relator.  Informing,  &c.,  J  P  S, 
attorney-general,  &c.,  at  and  by  the  relation  of  A  B,  of,  &c., 
that  J  &c. 

Same,  on  behalf  of  a  lunatic.(a)  Informiog,  shows 
unto  your  Honor,  your  informant,  J  P  S,  attorney- general,  &c., 
on  behalf  of  J  W,  of,  (residence,)  a  lunatic,  at  and  by  the  rela- 
tion of  R  W,  of,  &c.,  that,  &c. 


III.— THE   PREMISES  OR  STATING   PART.(6) 

{After  narrating  the  faots  and  circumstances  of  the  complain- 
ant's case,)  concludes  as  follows: 

And  your  orator  well  hoped  that  the  said  C  D  {the  defendant) 


Avhere  the  property  of  the  state,  owned 
by  it  in  its  political  capacity,  or  where 
public  rights,  in  which  no  merely 
private  interest  is  involved,  are  in 
question — the  courts  are  open  to  the 
state,  without  requiring  security  for 
costs  Ibid.;  S.  C  on  appeal,  12  C.  E. 
Or.  633. 

(a)  Information  by  the  attorney- 
general  may  be  filed  on  behalf  of  a 
lunatic  in  certain  cases.  Norcom  v. 
Rogers,  1  C.  E.  Gr.  484.  But  he  must 
be  named  as  a  party  to  the  suit ; 
merely  naming  him  as  a  relator  not 
sufficient.  AWy-Gen.  v.  Tiler,  1  Dick. 
378. 

(6)  A  bill  in  chancery,  like  a  de- 
claration at  law,  should  confine  its 
statements  to  such  facts  as  are  proper 
to  show  that  the  complainant  is  en- 
titled to  relief,  and  which,  if  proved, 
will  entitle  him  to  relief;  and  should 
not  set  out  the  evidence,  whether  oral 
or  written,  by  which  the  facts  are  to 
be  proved.  C.  &  A.  R.  R.  Co  v.  Stew- 
art, 4    C.   E.  Gr.  343;   see   Smith   v. 


Burnham,  2  Sumner  612 ;  Bishop  v. 
Bishop  13  Ala.  475.  The  modern 
English  rule  is  different,  and  requires 
all  admissions  or  confessions  of  the 
defendant,  relied  on  as  evidence,  to  be 
set  forth  in  the  bill ;  and  if  they  are 
not,  excludes  the  complainant  from 
offering  them  in  evidence.  Whether 
this  rule  applies  to  the  courts  of  this 
state,  not  decided.  Ibid.;  see  Story's 
Eq.  PL,  I  265.  Where  the  statement 
of  facts  in  the  bill  is  broad  enough  to 
give  the  complainant  a  right  to  relief, 
it  matters  not  hoM"  narrow  the  prayer 
may  be,  if  the  bill  contains  a  prayer 
for  general  relief.  And  although  a 
complainant  may  claim  a  relief  not  at 
all  warranted  by  the  facts,  or  may  be 
entitled  to  relief  upon  very  different 
principles  of  equity  from  what  he 
supposed,  such  a  misapprehension  of 
his  case  cannot  defeat  his  right  to 
relief.  Hill  v.  Beech,  1  Beas.  31.  The 
fact  that  the  frame  of  the  bill  is 
unusual  and  without  a  precedent,  does 
not  alone  constitute  an  objection  to  the 


8 


FOEMS   OF   PLEADINGS. 


would   have  complied  with  such  reasonable  requests  of  your 
orator,  as  in  equity  and  good  conscience  he  ought  to  have  done. 


relief  sought,  if  it  can  be  supported 
upon  principle     Yauger  v.  Skinner,  1 
McCart.   395.     The  bill    should    be 
framed  to  meet  the  case,  so  that  the 
allegata  and  probata  may  agree  with 
reasonable   certainty.     Smith,  Adm'r, 
T.  Axtell,  Sax.  497.     Where  the  bill 
goes  on    an    original    agreement    in 
writing,  and  does  not  mention  the  loss 
of  it,  so  as  to  admit  of  any  evidence  in 
lieu  of  it,  parol  evidence  of  its  con- 
tents, or  a  paper  purporting  to  be  a 
copy  of  it,  is  not  sufficient;   but  the 
pleadings  may  be  amended  to  get  at 
the  merits  of  the  case.     Ibid.     Tech- 
nicality of  pleading,  however,  is  not 
required  ;  and  if  the  complainant  files 
his  bill  as  the  assignee  of  the  mort- 
gage, and  alleges  that  the  debt  is  due 
and   owing   to   him,  and   that   he   is 
ready  to  produce  the  note  or  obliga- 
tion,  which   is  the   evidence  of  the 
debt  the  mortgage  is  given  to  secure, 
it  is  sufficient,  without  stating  that  the 
note  or  obligation  has  been  assigned 
to  him.    Ibid.    Where  the  bill  shows 
upon  its  face  that  the  complainant  has 
the  legal  title,  and  a  complete  legal 
defence  to  an  action  of  ejectment,  this 
court  will  not  interfere  with  the  suit 
at  law.     Philhower  v.  Todd,  3  Stock. 
54.     The  bill  must  show  clearly  the 
grounds  of  equity,  and  they  must  not 
be  left  to  inference.     Ibid.    The  com- 
plainant  can  recover  only  upon  the 
case  made  in  his  bill.     The  allegata 
and  probata  must  correspond.  Parsons 
V.  Heston,  3  Stock.  155,  An  immaterial 
variance     between      the     agreement 
alleged  in  the  bill  and  that  admitted 
by   the   answer,   will   not  prevent  a 
decree  for  specific  performance.    Ash- 
more  V.  Evans,  3  Stock  153.     Where 
a  complainant  claims  the  benefit  of  a 


statute,  his  bill  must  contain  all  the 
averments  necessary  to  bring  his  case 
within  its  beneficial  provisions.   Eber- 
hart  V.  Gilchrist,  3  Stock.  167.     The 
rule  is  not  entirely  inflexible  that  the 
substance   of  the   complainant's   case 
must  be  contained  in  the  stating  part 
of  the  bill.    Borback  v.  Dorsheimer,  10 
C.   E.    Gr.   516.      The    complainant 
will    not    be    permitted    to   offer   or 
require  evidence  of  any  material  fact 
not  distinctly  stated  in  this  part  of  the 
bill.  '  Story's  Eq.  PL,  U  28,  257.     A 
general   statement   or   charge  of  the 
matter  of  fact  is  sufficient;   it  is  not 
necessary  to  charge  minutely  all  the 
circumstances  which  may  conduce  to 
prove   the  general   charge,  for  these 
circumstances  are  properly  matters  of 
evidence,  which  need  not  be  charged 
in   order   to   let   them   in   as   proofs. 
Story's  Eq.  PL,  ?  28  ;  C.  &  A.  R.  B. 
Co.  v.  Stewart,  4  C.  E.  Gr.  343.     If  a 
fact  is  stated  anywhere  in  the  stating 
part  of  the  bill,  with  legal  certainty, 
and   is  material,  it  is   well   pleaded. 
PaL  &  Hud.  B.  B.  Co.  v.  Jersey  City, 
1  Stock.  434 ;  Bandolph  v.  Daly,  1  C. 
E.  Gr.  313.     Facts   proved,  but   not 
pleaded,  are  not  availal)le  to  the  party 
proving   them.      Allen   v.    Mercantile 
Mut.  Ins.  Co.,  46  Barb.  643.     Gener- 
ally, whatever  is  essential  to  the  rights 
of  the  complainant,  and  is  necessarily 
within   his  knowledge,   ought   to   be 
alleged  positively     Ld.  Bed.  41.     It 
is  not  a  sufficient  averment  of  fact  in  a 
bill  to  state  that  a  plaintiff  ''is  so  in- 
formed."   Lord  Uxbridge  v.  Staveland, 
1    Ves.,  Sr ,  56;   Phillips  v.  Schooley, 
12  C.  E.  Gr.  410.     An  allegation  that 
the  complainant  "  has  been  informed 
and  believes,  and  therefore  avers,"  is 
a  sufficient  averment.    Wells  v.  Bridge- 


BILLS  :    THEIR   SEVERAL   PARTS. 


IV.— THE  CHARGE  OF  CONFEDERACY.(a) 


v.— THE  CHARGING  PART.(6) 

And  the  said  defendants  sometimes  pretend  that,  &c.,  whereas, 
your  orator  charges  the  contrary  thereof  to  be  the  truth,  and 
that,  &c. 

VI.— THE  JURISDICTION  CLAUSE.(c) 

All  which  actings,  doings  and  pretences  of  the  said  defendant 
(or  "defendants")  are  contrary  to  equity  and  good  conscience, 


port  Co.,  30  Conn.  316.  A  complain- 
ant must  state  in  his  bill  a  case  upon 
which,  if  admitted  by  the  answer  or 
proved  at  the  hearing,  the  court  could 
make  a  decree.  Perry  v.  Carr,  41  N. 
Jf.  371.  This  part  of  the  bill  should 
be  full  and  accurate,  for  if  a  plea  is 
put  in,  the  validity  of  the  plea  will  be 
decided  with  reference  to  the  stating 
part  of  the  bill,  and  not  with  reference 
to  the  interrogating  part,  if  it  should 
vary  from  it.  Story's  Eq.  PL,  §  27. 
Where  the  stating  part  does  not  show 
the  equity  of  the  complainant's  case, 
the  defect  cannot  be  supplied  by  infer- 
ence or  by  reference  to  averments  in 
other  parts  of  the  bill.  Wright  v. 
Dame,  22  Pick.  59.  A  bill  which  fails 
to  make  a  case  which  if  admitted  or 
proved  will  entitle  the  complainant  to 
a  decree,  must  be  held  bad  on  general 
demurrer.  Kip  Y.Kip,  6  Steiv.  Eq.  213. 

In  equity  pleadings  such  degree  of 
certainty  should  be  adopted  as  will 
give  the  opposite  party  full  informa- 
tion of  the  case  he  is  called  upon  to 
meet.  Mutual  Life  Ins.  Co.  v.  Sturgis, 
6  Stew.  Eq.  328 ;  Dogherty  v.  Bennett, 
10  Stew  Eq.  87 ;  Brokaw  v.  Brokaw, 
14  Stew.  Eq.  215. 

(a)  The  charge  of  confederacy  is 
now  abolished.     See  rule  214. 


(6)  Where  the  complainant  wishes 
to  obtain  a  discovery  of  facts  to  antici- 
pate and  rebut  the  defence  which  may 
be  set  up  by  the  defendant,  he  should, 
in  the  charging  part  of  the  bill,  state 
the  anticipated  defence  as  a  pretence 
of  the  defendant,  and  then  charge  the 
real  facts,  to  lay  a  foundation  for  the 
discovery  which  is  sought.  Stafford  v. 
Brown,  4  Paige  88.  It  has  been  held 
that  in  a  sworn  bill,  it  is  equally  per- 
jury for  the  complainant  knowingly  to 
make  a  false  charge  or  averment  in 
the  charging  part,  as  to  make  a  false 
statement  in  the  stating  part  of  the 
bill.  Smith  v.  Clarke,  4  Paige  368. 
A  defect  in  the  charging  part  of  a  bill 
cannot  be  supplied  by  a  subsequent 
interrogatory.  Parker  v.  Carter,  4 
Munf.  273.  Whether  a  fact  is  to  be 
stated  in  the  stating  part  or  the  charg- 
ing part  of  the  bill  may  be  decided  by 
the  following  criterion :  If  it  is  a  fact 
fundamentally  material  to  the  com- 
plainant's case,  actually  essential  to  it 
beyond  all  doubt,  as  a  portion  of  its 
very  consistence,  it  should  be  in  the 
stating  part,  but  not  otherwise. 

(c)  A  precise  averment  of  jurisdic- 
tion in  the  court  is  now  obsolete  in 
England,  and  was  never  absolutely 
requisite.     Dan.  Ch.  Pr.  1883,  note  2. 


10 


FORMS   OF   PLEADINGS. 


and  tend  to  the  manifest  wrong,  injury  and  oppression  of  your 
orator  in  the  premises. 

In  consideration  whereof,  and  forasmuch  as  your  orator  is 
without  adequate  remedy  in  the  premises,  at  and  by  the  strict 
rules  of  the  common  law,  and  can  only  obtain  relief  in  this 
honorable  court,  where  matters  of  this  nature  are  properly 
cognizable  and  relievable. 

VII.— INTERROGATING   PART.(a) 

To  the  end,  therefore,  that  the  said  {defendants,  naming  ihem,) 
may,  upon  their  several  and  respective  corporal  oaths,  to  the  best 
and  utmost  of  their  respective  knowledge,  remembrance,  infor- 
mation and  belief,  full,  true  and  perfect  answer  make  to  all  and 
singular  the  matters  aforesaid,  {or  if  an  answer,  on  oath,  is  meant 
to  be  waived,  omit  the  words  in  italics,  and  insert  at  this  place: 


(a)  Interrogatories  appended  to  the 
bill,  and  based  on  the  statements  and 
charges  therein  made,  may  be  regarded 
as  incorporated  in  the  bill,  and  a 
prayer  for  a  responsive  answer  thereto, 
on  oath,  is  not  demurrable.  liornaine 
V.  Hendrichon's  Ez'rs,  9  C.  E  Or.  231. 
A  bill  which  wholly  omits  the  inter- 
rogatory part  is  defective.  Shedd  v. 
Garfield,  5  Vt.  39 ;  but  see  Story's  Eq. 
PL,  I  38,  and  note  3.  The  general  in- 
terrogatory or  requistion  in  the  bill, 
"that  the  defendant  may  full  answer 
make  to  all  and  singular  the  premises, 
fully  and  particularly,  as  though  the 
same  were  repeated,  and  he  specially 
interrogated  paragraph  by  paragraph, 
with  sums,  dates  and  all  attending  cir- 
cumstances and  incidental  transac- 
tions," is  sufficient  to  entitle  the  com- 
plainant to  a  full  disclosure  of  the 
subject-matter  of  the  bill,  equally  as  if 
he  had  specially  interrogated  the  de- 
fendant to  every  fact  in  the  bill.  Meth. 
Ep.  Ch.  V.  Jaques,  1  Johns.  Ch.  65.  If 
the  defendant  be  specially  interrogated, 
there  can  be  no  interrogatory  allowed 
which  does  not  arise  from  or  relate  to 


some  fact  charged  in  the  bill.  James 
V.  McKernav,  6  Johns.  543  ;  Woodcock 
V.  Bennett,  1  Coiven  734.  The  defend- 
ant is  not  bound  to  answer  an  inter- 
rogatory, unless  the  same  is  founded 
upon  some  allegation  or  charge  in  the 
bill.  Mechanics'  Bank  y  Levy,  Z  Paige 
606.  It  is  provided  by  statute  in  New 
Jersey,  (Rer.,  "Chancery,"  §  23,)  that 
when  an  answer  without  oath  is 
prayed  in  the  hill,  the  complainant 
may  annex  to  the  bill  interrogatories 
founded  on  statements  in  the  bill,  and 
the  same  or  any  part  thereof  may  be 
addressed  to  all  or  any  of  the  de- 
fendants, *  *  and  any  defendant 
omitting  to  answer  any  such  inter- 
rogatory directly  and  fully,  may  be 
compelled  to  do  so,  or  the  allegations- 
in  the  bill  upon  which  the  interroga- 
tory is  founded,  shall  be  taken  as  ad- 
mitted to  be  true. 

Where  a  bill  prays  an  answer  with- 
out oath,  such  answer,  although  not 
evidence  for  the  defendants,  is  evi- 
dence against  them.  Symmes  v.  Strong, 
1  Stew.  Eq.  131  The  interrogatory  part 
is  composed  of  nothing  more  than  each 


BILLS:     THEIR   SEVERAL    PARTS. 


11 


your  orator  hereby  waiving,  pursuant  to  the  statute,  the  necessity 
of  the  answer  of  such  defendants  being  put  in  under  the  oaths 
of  the  said  defendants,  or  the  oaths  of  either  of  them,)  {or  say 
simply^  without  oath,)  and  that  as  fully  and  particularly  as  if  the 
same  were  here  repeated,  and  they  and  every  of  them  distinctly 
interrogated  thereto  ;  {here  insert  the  interrogatories,  if  any,  to  be 
answered  by  the  defendants,  directing  what  interrogatories  are  to 
be  answered  by  each,  thus :)  and  more  especially  that  they  may, 
in  manner  aforesaid,  answer  and  set  forth  whether,  &c. 


VIII.— PRAYER   FOR  GENERAL  RELIEF.(a) 

And  that  your  orator  may  have  such  further  or(6)  other  relief 
in  the  premises  as  the  nature  of  the  case  may  require,  and  as 
shall  be  agreeable  to  equity  and  good  conscience. 


statement  and  pretence  and  charge  in 
the  stating  and  charging  parts  of  the 
bill,  repeated  with  such  additions  only 
as  render  each  a  question  instead  of  an 
assertion,  such  questions  being  num- 
bered and  beginning  with  the  word 
"  Whether,"  e.  g.,  "  Whether  it  is  not  a 
fact  that,"  or  "  Whether  it  is  not  true 
that." 

(a)  The  prayer  for  general  relief 
cannot  be  properly  or  safely  omitted, 
because  if  the  complainant  should 
mistake  the  relief  to  which  he  is  en- 
titled in  his  special  prayer,  the  Chan- 
cellor may  yet  afford  him  the  relief 
to  which  he  has  a  right  under  the 
prayer  for  general  relief,  provided 
such  relief  is  agreeable  to  the  case 
made  by  the  bill.  Ld.  Red.  38,  45. 
Under  the  prayer  for  general  relief, 
only  such  relief  can  be  given  as  is 
warranted  by  facts  clearly  and  posi- 
tively set  forth  in  the  bill.  Walker  v. 
HiWs  Ex'rs,  6  C.  E.  Gr.  191.  Where 
a  bill  contains  only  a  special  prayer 
for  relief,  no  other  relief  can  be 
granted.  And  if  the  facts  set  forth  in 
the  bill  would  not  authorize  other 
relief,  the  prayer  will  not  be  amended. 
Halsled  v.  Meeker's  Ex'rs,  3  C.  E.  Gr. 


136.  Under  the  general  prayer  for 
relief,  any  relief  will  be  granted  that 
the  complainant  proves  himself  en- 
titled to  upon  the  facts  stated  in  his 
bill,  Graham  v.  Berryman,  4  C.  E. 
Gr.  29;  Pillow  y.  Pillow,  5  Yerg.  420; 
and  see  Bailey  v.  Burton,  8  Wend  339 ; 
Lingan  v.  Henderson,  1  Bland  251. 
Where  the  statement  of  facts  is  broad 
enough  to  give  complainant  a  right  to 
relief,  it  matters  not  how  narrow  the 
prayer  may  be,  if  the  bill  contains 
a  prayer  for  general  relief.  Hill  v. 
Beach,  1  Beas.  31.  Under  the  prayer 
for  general  relief,  the  complainant 
cannot  recover  a  claim  distinct  from 
that  demanded  or  put  in  issue  by  the 
bill.  Sheppard's  Ex'r  v.  Starke,  3 
Munf.  29.  Ordinarily,  an  injunction 
cannot  be  granted  under  a  prayer  for 
general  relief:  it  must  be  the  subject 
of  a  special  prayer,  but  the  bill  may  be 
so  amended.  African  M.  E.  Church, 
V.  Conover,  12  C.  E.  Gr.  157.  Where 
an  account  or  any  other  relief  is  in- 
cidentally asked,  if  relief  on  the  main 
ground  is  denied,  the  bill  should  be 
dismissed.  Jewell  v.  Bowman,  2  Stew. 
Eq.  174. 

(6)  See  Colton  v.  Ross,  2  Paige  397. 


12 


FORMS   OF   PLEADINGS. 


IX.— PRAYER   FOR  PROCESS.(a) 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
unto  your  orator  the  state's  writ  or  writs  of  subpcena,  issuing 
out  of  and  under  the  seal  of  this  honorable  court,  to  be  directed 
to  the  said  [defendants,  naming  them,)  commanding  them,  and 
each  of  them,  by  a  certain  day  and  under  a  certain  penalty 
therein  to  be  expressed,  to  be  and  appear  before  your  Honor  in 
this  honorable  court,  then  and  there  to  answer  all  and  singular 
the  said  premises,  and  to  stand  to,  abide  by,  and  perform  such 
order  and  decree  therein  as  to  your  Honor  shall  seem  meet,  and 
shall  be  agreeable  to  equity  and  good  conscience.  And  your 
orator,  as  in  duty  bound,  will  ever  pray,  &c. 

Where  the  United  States  or  the  state  is  a  party. (6) 
May  it   please  your  Honor,  that   the  district  attorney  of  the 


(a)  The  bill  must  call  all  necessary 
parties,  however  remote  in  interest, 
before  the  court,  and  none  are  parties 
but  those  against  whom  process  is 
prayed.  Blake  Ch.  Pr.  20 ;  Howe  v 
Bobbins,  9  Stew.  Eq.  19;  While  v. 
Davis,  3  Dick.  Ch.  Rep.  22.  Where  a 
bill  contained  no  prayer  for  process,  a 
demurrer  was  allowed  for  this  defect. 
Wright  V.  Wright,  4  Hal.  Ch.  143. 
The  omission  cannot  be  taken  advan- 
tage of  by  general  demurrer.  Boon  v. 
Pierponi,  1  Stew.  Eq.  7.  In  this  case, 
the  demurrer  was  overruled  with 
leave  to  amend  it,  unless  complain- 
ants, within  ten  days,  should  amend 
their  bill  by  inserting  defendants' 
names  in  the  prayer  for  answer.  See 
Marsh  V.  Marsh,  1  C.  E.  Gr.  391. 
They  only  are  defendants  to  a  bill 
against  whom  process  of  subpoena  is 
prayed.  Fawkes  v.  Pratt,  1  P.  Wms. 
593;  Windsor  v.  Windsor,  2  Dick.  707. 
A  party  whom  the  bill  prays  to  be 
made  a  party,  does  not  thereby  become 
a  party;   to  make  him  such,  process 


must  be  issued  and  served  upon  him. 
Bond  V.  Uendricks,  1  A.  K.  Marsh. 
594.  Formerly,  in  New  York,  parties 
might  be  treated  as  defendants,  by  a 
clear  statement  in  the  bill  to  that 
effect,  without  praying  the  subpoena. 
Brasher  v.  Van  Cortlandt,  2  Johns.  Ch. 
245 ;  Elmendorf  v.  Delancy,  Hopk.  555. 
The  prayer  for  process  is  required  by 
the  23d  equity  rule,  U.  S.  courts. 
And  see  Story's  Eq.  PL,  ^  44.  An 
amendment  will  cure  the  omission  of 
a  prayer  for  subpoena  in  the  original 
bill.  Ogden  v.  Gibbons  July  Term, 
1823 ;  see  Chancery  rule  66,  as  to 
amendments. 

(6)  It  is  provided  (Bev.,  "  Treasury," 
§1  69,  70,)  that  in  all  suits  wherein 
the  lien  or  encumbrance  or  priority  of 
encumbrance  of  the  state  shall  be 
brought  in  question,  a  notice  out  of  the 
court,  stating  the  names  of  the  parties 
and  the  encumbrance  or  lien  of  the 
state  sought  to  be  affected,  and  a  day 
for  return,  as  in  writs  out  of  the  same 
court,  may  issue  directed  to  the  State 


BILLS:    THEIR   SEVERAL   PARTS. 


13 


United  States(a)  for  the  district  of  ,  (or  the  attorney-general 
of  the  state  of  ,)  being  attended  with  a  copy  of  this  bill,  may 
appear  and  put  in  an  answer  thereto,  and  may  stand  to  and 
abide  such  order  or  decree  in  the  premises  as  to  your  Honor 
shall  seem  meet,  &c. 

In  the  case  of  a  corporation  defendant.(6)  And  that 
the  said  the  "  president,  directors  and  company  of  the  State 
Bank  at  New  Brunswick  "  may  appear  according  to  law  and  the 
course  of  this  court. 


Prayer  for  injunction  and  for  subpoena. (c)  May  it 
please  your  Honor,  the  premises  considered,  to  grant  unto  your 
orator  not  only  the  state's  writ  of  injunction,  issuing  out  of  and 
under  the  seal  of  this  honorable  court,  to  be  directed  to  the  said 
C  D  and  E  F,  restraining  them  and  each  of  them,  from  (com- 
mitting any  further  waste  or  destruction  upon  the  mortgaged 
premises  aforesaid,  or  as  the  case  may  be,)  but  also  the  state's 
writ  of  subpoena,  &c. 


of  New  Jersey,  and  the  same  may  be 
served  upon  the  attorney-general  as 
other  process  is  served  out  of  said 
court;  and  on  the  return  of  such 
notice  duly  served,  or  on  appearance 
by  the  attorney-general  for  the  state, 
the  suit  may  proceed  as  in  other  cases, 
and  a  decree  or  judgment  therein  shall 
bind  the  state  the  same  as  if  it  had 
been  made  against  an  individual. 

(a)  Elliott  V.  Van  Voorst,  3  Wall., 
Jr.,  299. 

(6)  Where  a  corporation  is  made  a 
defendant,  it  appears  deficient  in  pre- 
cision to  say  that  it  should  personally 
appear.  1  Hoff.  Ch.  Pr.  56.  Where 
there  was  no  prayer  for  process  against 
a  corporation  by  its  corporate  name, 
but  only  against  the  officers  thereof, 
and  the  corporation  was  not  described 
in  the  bill  as  being  a  party  thereto 
— held,  that  the  corporation  was  not 
before  the  court  or  a  party  to  the  suit. 


Verplanck   v.   Mercantile  Ins.    Co.,  2 
Paige  438. 

(c)  A  subpcena  must  be  taken  out 
with  the  injunction,  and  made  return- 
able within  the  time  prescribed  by  the 
rule  for  the  return  of  service  of  the 
injunction.  Lee  v.  Cargill,  2  Slock. 
331.  But  after  answer  has  been  filed, 
it  is  too  late  to  object  to  the  want  of 
subpoena.  MS.,  Williamson,  C,  April, 
1829.  If  an  injunction  is  taken  out 
without  taking  out  a  subpoena,  the 
injunction  may,  for  that  cause,  be 
dissolved.  Ibid.  If  an  injunction  is 
prayed  in  the  bill,  but  is  omitted  in 
the  prayer  for  process,  an  injunction 
ought  not  to  issue  without  an  amend- 
ment of  the  bill.  Bailey  v.  Stiles,  2 
Gr.  Ch.  245.  On  bills  to  restrain  the 
execution  of  process  or  the  perform- 
ance of  official  acts  the  sheriff  is  made 
a  party,  as  the  design  of  the  injunction 
is   to  restrain  him   from  acting;   but 


14 


FORMS   OF   PLEADINGS. 


Prayer  for  ne  exeat  and  subpoena. (a)  May  it  please 
your  Honor,  the  premises  considered,  to  grant  unto  your  orator, 
not  only  a  writ  of  ne  exeat  republica  issuing  out  of  and  under 
the  seal  of  this  honorable  court,  to  restrain  the  said  defendant, 
C  D,  from  departing  out  of  the  jurisdiction  of  this  court,  but 
also  the  state's  writ  of  subpcena,  &c. 


■where  no  relief  is  prayed,  and  no  de- 
cree asked  against  the  officer,  it  is  not 
necessary  nor  usually  expedient  for 
the  sheriff  to  answer.  Brooks  v. 
Lewis,  2  Beas.  214. 

(a)  The  writ  of  ne  exeat  cannot  issue 
-without  a  bill  being  filed.  Ex  parte 
Bruncker,  3  P.  Wms.  312.  The  affidavit 
on  which  the  application  for  a  ne  exeat 
was  made  in  a  divorce  case,  was  made 
before  the  petition  for  divorce  was 
filed,  ^^e  exeat  denied.  The  proper 
course  is  to  file  the  bill  or  petition  for 
drvorce,  and  after  that  to  file  a  peti- 
tion for  the  ne  exeat,  supported  by 
the  necessary  affidavits,  sworn  subse- 
quently. Bylandt  v.  Bylandt,  2  Hal. 
Ck.  28 ;  Anonymous,  6  Mad.  276 ; 
Hughes  v.  Ryan,  1  Beaity  327.  It  is 
not  necessary  that  the  defendant 
should  be  actually  in  the  state  when 
application  is  made  for  the  writ  of 
tie  exeat.  Parker  v.  Parker,  1  Beas. 
105.  Upon  a  bill  for  alimony  only, 
the  court  may  make  an  order  for  a 
ne  exeat  before  alimony  is  fixed.  Yule 
V.  Yule,  2  Stock.  138.  The  affidavit 
of  the  wife  alone  is  sufficient  to  sup- 
port the  order.  Ihid. ;  see  Denton  v. 
Denton,  1  Johns.  Ch.  441.  The  affi- 
davit should  show  that  the  defendant 
intends  going  abroad.  Ibid.;  see 
Dunham  v.  Jackson,  1  Paige  629.  In 
some  cases,  it  will  be  sufficient  if  the 
intention  of  the  defendant's  going 
abroad  is  sworn  to  upon  information 
or  belief.  Ibid.  Nor  is  it  necessary 
that  he  should  be  a  resident  of  this 
state.     Ibid.;  see  Mitchell  v.  Bunch,  1 


Paige  606 ;  Gilbert  v.  Colt,  Hopk.  496. 
A  writ  of  ne  exeat  will  not  issue  unless 
there  is  a  debt  due  from  the  defend- 
ant to  the  complainant,  or  unless  the 
complainant  is  entitled  to  an  account. 
Williams  v.  Williams,  2  Gr.  Ch.  130. 
But  see  as  to  applications  for  alimony, 
Denton  v.  Denton,  1  Johns.  Ch.  441. 
The  writ  of  ne  exeat  will  issue  only  for 
an  equitable  demand ;  and  an  action 
for  an  account  is  an  equitable  demand 
for  which  it  will  issue.  MacDonough 
V.  Gaynor,  3  G.  E.  Gr.  249 ;  Mitchell 
v.  Bunch,  supra.  It  must  appear  by 
positive  proof  that  there  is  a  certain 
sum  actually  due,  except  in  account, 
when  the  proof  must  show  some  sum 
due,  the  amount  of  which  may  be 
sworn  to  according  to  belief.  Ibid.; 
Boehm  v.  Wood,  1  Tur.  &  Buss.  343. 
The  writ  will  be  issued  against  a  non- 
resident, temporarily  here,  even  if  not 
in  the  state  at  the  time ;  and  it  is  not 
necessary  that  it  should  appear  that 
he  is  about  to  depart  to  avoid  the 
jurisdiction,  if  his  departure  will  de- 
feat the  suit.  McDonough  v.  Gaynor, 
ubi  supra.  If  the  writ  is  served,  no 
subpcena  is  necessary.  Ibid.  A  de- 
fendant arrested  and  in  custody  under 
a  ne  exeat  may,  before  answer,  apply 
for  the  discharge  of  the  writ  on  affi- 
davits. Gary  v.  Gary,  12  Stew.  Eg.  3. 
A  defendant  is  entitled  to  the  benefit 
of  his  sworn  answer  to  the  charge  of 
the  bill  upon  which  a  ne  exeat  issued. 
Jewett  V.  Bowman,  12  C.  E.  Or.  lib. 
A  ne  exeat  may  be  applied  for  at  any 
stage  of  the  suit.   Dunham  v.  Jackson, 


BILLS  :     THEIR   SEVERAL   PARTS. 


15 


METHOD   OF  SIGNING   BILLS. 

Where  a  complainant  sues  in  person.  John  Smith, 
complainant,  in  person. 

Bill  by  a  private  person  or  corporation,  through 
a  solicitor.(a)  J  W  T,  solicitor  for  and  of  counsel  with  com- 
plainant. 

Bill  by  a  private  person,  sworn  to. (6)  A  B,  (com- 
plainant.)    P  K,  solicitor  for  and  of  counsel  with  complainant. 


1  Paige  629.  If  the  party  in  tlie  pro- 
gress of  the  suit  threatens  to  leave  the 
country,  the  writ  may  be  applied  for 
by  petition,  without  its  being  prayed 
for  in  the  bill,  and  without  an  amend- 
ment to  insert  such  prayer.     Collinson 

V.   ,   18    Fes.   354;    Beames'    Ne 

Exeat  62. 

(rt)  Bills  must  be  signed  by  counsel. 
Signing  the  name  of  counsel  is  not  a 
compliance  with  the  rule,  either  in 
spirit  or  letter.  Davis  v.  Davis,  4  C. 
E.  Gr.  180 ;  see  Chancery  rule  48. 
Where  the  complainant  sues  in  per- 
son, it  seems  the  bill  need  not  be 
signed  by  counsel.  1  Hoff.  Ch.  Pr.  97. 
Signature  of  firm  of  counsellors  to  a 
bill  a  compliance  with  the  rule. 
Hampton  v.  Coddington,  1  Stew.  Eq. 
557.  Where  the  bill  was  not  signed  by 
counsel,  the  demurrer  was  allowed  as 
to  this  defect.  Wright  v.  Wright,  4 
Hal.  Ch.  143 ;  see  Dillon  v.  Francis, 
Dick.  68.  In  New  Jersey,  bills  are 
generally  signed  by  the  solicitor  and 
counsel  alone,  and  not  by  the  party. 
He  who  is  both  solicitor  and  counsel, 
may  sign  it  in  both  capacities.  In 
Whitlock  V.  Harriot,  2  Be-p.  in  Ch. 
386,  it  was  held  that  a  solicitor  was 
guilty  of  a  misdemeanor  in  putting 
the  name  of  a  counsellor  to  a  pleading 
without  his  knowledge  or  consent. 
See  Doe  v.  Oreen,  2  Paige  347.    If  the 


bill  has  been  inadvertently  filed  with- 
out the  signature  of  counsel,  an  order 
as  of  course  may  be  obtained  on  mo- 
tion or  petition,  giving  leave  to  amend 
by  adding  such  signature.  Braith- 
tvaite's  Pr.  23.  Counsel,  before  annex- 
ing his  name  to  a  bill,  should  peruse 
it  or  be  informed  of  its  contents  in 
such  manner  as  to  satisfy  him  that  hB 
may  certify  that  the  bill  states  a  case 
on  which  the  complainant  may  be 
entitled  to  relief,  set  forth  with  so 
much  regard  to  the  essential  rules  of 
pleading,  and  praying  relief  in  such 
manner  as  to  entitle  it  to  the  con- 
sideration of  the  court.  Davis  v. 
Dams,  4  C.E.  Gr.  181. 

(6)  In  cases  where  the  bill  is  to  be 
sworn  to,  the  practice  varies  as  to  the 
signature  of  the  party  to  the  bill.  In 
New  York,  a  rule  of  the  court  re- 
quired the  bill  to  be  so  signed,  and 
this  practice  seems  to  have  prevailed 
generally  in  injunction  cases  before 
the  adoption  of  the  rule.  In  the  ab- 
sence of  any  express  rule  in  New  Jer- 
sey, it  is  probable  that  a  signature  to  a 
verification  of  the  bill  would  be  con- 
sidered a  sufficient  subscription  to  the 
bill.  For  the  practice  of  the  court  as 
to  the  manner  of  signing  and  verify- 
ing pleadings,  see  Pincers  v.  Robertson, 
9  C.'e.  Gr.  348. 


16  FORMS   OF   PLEADINGS. 

Bill  by  a  corporation,  sworn  to. (a)    T  F  R,  (president, 
&c.)     J  V,  solicitor  for  and  of  counsel  with  complainant. 

METHOD  OF  SWEARING  TO   BILLS.(6) 

By  the  complainant  in  person. 

State  of  New  Jersey, 


county  of 

A  B,  the  above-named  complainant,  being  duly  sworn  accord- 
ing to  law,  on  his  oath  saith — That  he  has  read  the  above  bill 
of  complaint  {or  has  heard  the  above  bill  read)  and  knows  the 
contents  thereof,  and  that  the  same  is  true  of  his  own  knowledge, 
except  as  to  the  matters  that  are  therein  stated  to  be  on  his  infor- 
mation or  belief,  and  as  to  those  matters  he  believes  it  to  be  true. 
And  further,  &c.     {Here  follows  the  specific  verification.) 

{Signature.) 

Sworn  and  subscribed  before  me,  this  day  of  , 

A.  D.  18     .  {Signature  of  master.) 

By  an  agent  or  attorney.  {Same  as  in  form  above.) 
A  B,  the  agent  (or  attorney)  of  G  H,  the  above-named  com- 
plainant, being  duly  sworn,  &c.,  saith — That  he  has  read  the 
above  bill  {or  heard  it  read)  and  knows  the  contents  thereof,  and 
that  the  same  is  true  of  his  own  knowledge,  except  as  to  the 
matters  therein  stated  to  be  on  the  information  or  belief  of  the 
complainant,  and  that  as  to  those  matters  he  believes  it  to  be 
true.     And  further,  &c.  {Signature.) 

{Jurat.) 

(a)  In  case  a  bill  of  a  corporation  cient ;  but  the  statements  of  the  bill 

is  signed,  it  should  be  so  signed  by  which  are  relied  upon  as  grounds  for 

the  officer  making  the  oath.     1  Hoff.  granting  the  writ,  must  be  specifically 

Ch.Pr.96.  verified.     Eule   118;    Youngblood   v. 

(6)  The  bill,  except  in  special  cases  Schamp,  2  McCart.  42;  Holdrege  v. 
to  be  mentioned  hereafter,  need  not  be  Gwynne,  3  C.  E.  Gr.  27.  "Where  a 
sworn  to.  Where  the  complainant  in  bond  has  been  casually  lost  and  a 
an  injunction  bill  relies  on  his  own  party  comes  into  the  Court  of  Chan- 
oath,  the  charges  in  the  bill,  and  the  eery  for  discovery  and  also  for  relief,, 
affidavits  verifying  them,  should  be  it  is  usual  to  attach  to  the  bill  an  affi- 
direct  and  positive.  Perkins  v.  Collin?,  davit  of  the  loss.  Miller  v.  Wack^ 
2  Gr.  Ch.  482.  To  obtain  an  injunc-  Sax.  210. 
tion,  this  form  of  affidavit  is  not  suffi- 


BILLS  :     AFFIDAVITS    TO.  17 

By  a  corporation.(a)  J  G  S,  of  full  age,  being  duly 
sworn  according  to  law,  on  his  oath  saith — That  he  is  now,  and 
for  several  years  last  past  has  been,  the  president  of  the  C  & 
A  R  R  Co,,  the  corporation  named  as  complainant  in  the  above 
bill  of  complaint ;  and  that  by  means  of  his  said  office  he  has 
acquired  and  possesses,  as  he  verily  believes,  greater  and  more 
particular  knowledge  of  the  matters  stated  in  said  bill,  than  any 
other  officer  or  member  of  said  corporation,  inasmuch  as  said 
matters  relate  particularly  to  the  sphere  of  duties  of  deponent 
as  such  president ;  that  he  has  read  the  above  bill  {or  has  heard 
the  above  bill  read)  and  knows  the  contents  thereof,  and  that  the 
same  is  true  of  his  own  knowledge,  except  as  to  the  matters  that 
are  therein  stated  to  be  on  the  information  and  belief  of  the  com- 
plainant, and  that  as  to  those  matters  he  has  been  so  informed 
and  believes  it  to  be  true.     And  further,  &c.         {Signature.) 

{Jurat.){b) 

By  an  attorney  in  fact.(c)  {Commencing  as  in  general 
form.)  That  he  has  information  as  to  all  the  matters  stated 
therein,  and  from  such  information  believes  such  matters  to  be 
truly  stated  therein,  and  that  such  bill  is  true ;  that  deponent 
is  the  attorney  in  fact  of  A  B,  the  complainant  in  the  above 
bill,  for  the  purpose  of  filing  the  same,  to  obtain  the  relief 
therein  prayed,  constituted  and  appointed  by  the  said  complain- 
ant by  a  power  of  attorney  duly  executed  and  delivered  by 

(a)  Where  the   bill   is   filed   by  a  v.  Flemington  Co.,  2  Gr.  Ch.  467.   The 

corporation,  the  officer  or  other  person  affidavits  to  the  bill  are  not  evidence 

who  has  the  principal  personal  knowl-  at   the   final   hearing.     Att'y-Gen.  v. 

edge  of  the  facts  should  swear  to  them.  Steward,  6  C.  E.  Gr.  340. 
Youngblood  v.  Schamp,  2  McCart.  42.  (c)  This   form   was   prescribed   by 

The  president  or  secretary  or  agent  of  the  Chancellor  in  Bank  of  Orleans  v. 

a  corporation,  where  such  a  corpora-  Skinner,  9  Paige  305.     The  facts  need 

tion  is  a  party  to  a  suit,  is  the  proper  not  be  proved  by  the  affidavit  of  the 

person  to  make  an  affidavit  therein.  complainant.      Where    the    material 

Nevj  Brunswick  Co.  v.  Baldwin,  2  Gr.  facts  are  not   within   his  knowledge, 

440 ;  see  rule  118.  they  should  be  verified  by  the  oath  or 

(6)  If  an  injunction  bill  has  been  affirmation  of  some   person  who  has 

actually  sworn  to,  the  injunction  will  a  knowledge  of  the  facts.    Youngblood 

not  be  dissolved   because  the  master  v.  Schamjy,  2  McCart.  42. 
has  omitted  to  sign  the  jurat.    Capner 


18 


FORMS  OF  PLEADINGS. 


him ;  and  that  the  said  A  B  is  now,  as  deponent  verily  believes, 
absent  from  this  state,  to  wit,  in  the  Kingdom  of  Great  Britain, 
he  having  left  this  state  for  that  kingdom  on  or  about  the 
day  of        last  past,  and  that  he  is  not  expected  to  return  there- 
from for  some  considerable  time. 


OF  PKOCESS  FOR  APPEARANCE  AND  ANSWER.(a) 

Form  of  subpoena.  New  Jersey,  to  wit — The  State  of 
New  Jersey.     To  — Greeting : 

We  command   you,  that   you  personally  appear  before  our 

[l.  s.]     Chancellor,  in  our  Court  of  Chancery,  on  the         day  of 

next,  {or  "  instant,"  as  the  case  may  be,)  to  answer  to  a 


(a)  Upon  filing  the  bill,  a  subpoena 
issues.  Where  process  issued  several 
years  after  filing  of  the  bill,  it  was 
held  regular.  Stern  v.  Leddert,  4  Bibb 
178.  By  the  fifth  section  of  the  stat- 
ute, {Rev.,  "Chancery,"  p.  104,)  it  is 
provided  that  no  subpoena  or  other 
process  for  appearance  shall  issue  out 
of  the  court,  except  in  cases  to  stay 
waste,  until  after  the  bill  shall  have 
been  filed  with  the  clerk.  If  the  fact 
that  this  provision  has  been  violated 
be  promptly  brought  to  the  notice  of 
the  court,  the  subpoena  Avill  be  set 
aside  as  irregularly  issued ;  but  it  is  a 
purely  technical  irregularity,  and  is 
waived  by  entering  an  appearance. 
Croivell  V.  Bot&ford,  1  C.  E.  Gr.  458. 
A  mistake  in  ante-dating  a  subpoena, 
when  in  fact  it  was  not  issued  before 
filing  of  the  bill,  may  be  corrected. 
Dinsmore  v.  Westcott,  10  C.  E.  Gr.  302. 
An  amended  bill  is  considered  as  an 
original  bill,  and  a  new  subpoena  to 
answer  is  not  necessary  when  the  de- 
fendant has  not  appeared.  Equitable 
Life  Ass.  Soc.  v.  Laird,  9  C.  E.  Gr. 
319.  It  is  usual  to  get  subpoenas 
sealed   and   signed   in   blank   at   the 


clerk's  ofiice,  to  be  issued  as  occasion 
requires.  The  subpoena  issues  to  the 
infant  defendants  as  well  as  to  those 
who  are  adults.  It  should  be  tested 
as  of  the  day  it  issues.  The  act 
requiring  that  all  writs  and  process 
shall  bear  date  on  the  day  on  which 
the  same  shall  issue  seems  to  be 
directory.  They  may  not  be  ante- 
dated, but  if  post-dated  it  is  not  fatal. 
Harris  Canal  Co.  v.  Mitchell,  2  Vr.  99  .; 
see  Allen  v.  Smith,  7  Halst.  159.  It 
must  be  served  on  the  person  to  whom 
it  is  directed,  personally,  or  a  copy  left 
at  his  dwelling-house  or  usual  place 
of  abode,  at  least  ten  days  prior  to  its 
return  The  mode  of  serving  is  by 
delivering  a  copy  of  the  writ  and 
showing  the  original  at  the  time  of 
such  delivery  to  the  defendant,  or  in 
case  of  his  absence,  to  his  wife  or  ser- 
vant or  some  member  of  his  family, 
at  his  dwelling-house  or  usual  place 
of  abode.  See  Harrison  v.  Farrington, 
8  Stew.  Eq.  4.  The  sheriiF  may  alter 
the  return-day  to  suit  his  convenience 
in  making  service.  Kloepping  ads. 
Stellmacher,  7  Vr.  176-178.  A  written 
appearance   or   written    acknowledg- 


OP   SUBPCENA,  &C. 


19 


bill  of  complaint  exhibited  against  you  in  our  said  court  by 
,  and  to  do  further,  and  receive  what  our  said  court  shall 


ment  of  service,  signed  by  a  defend- 
ant or  his  solicitor,  and  filed  with  the 
clerk,  has  the  same  force  and  effect 
as  service  by  the  sheriff'  or  other 
proper  officer,  provided  such  signa- 
ture, if  of  the  party,  be  verified  by 
affidavit.  Bev.,  '^Chancery"  ^§  13, 
14,  15.  The  court  will  not  allow  its 
process  to  be  disregarded  or  evaded  on 
mere  technical  grounds.  Endicott  v. 
Mathis,  1  Stock.  110.  If  defendant 
appears,  it  cures  all  irregularities  in 
the  service  of  the  subpoena.  2  Mad. 
Ch.  Pr.  157.  The  subpoena  may  be 
made  returnable  any  day  except  Sun- 
day. But  if  inadvertently  made  re- 
turnable on  Sunday,  the  return-day 
may  be  amended.  McEroy  v.  Trustees, 
11  Stew.  Eq.  420.  As  to  writs  re- 
turnable on  a  legal  holiday,  see  Kin- 
ney V.  Emery,  10  Steiu.  Eq.  339.  Ser- 
vice of  subpoenas  upon  defendants  by 
leaving  copies  of  them  with  the  de- 
fendants' father,  at  work  in  a  field  near 
the  house,  on  his  farm  where  they 
lived  with  him,  the  defendants  being 
both  absent  from  home,  and  there 
being  no  one  at  the  house  on  whom 
they  could  be  served,  held  to  be  a 
substantial  compliance  with  the  re- 
quirements of  the  statute.  Wagner  v. 
Blanchet,  12  G.  E.  Or.  357;  and  see 
Smith  V.  Parke,  2  Paige  298.  Where  a 
copy  of  subpoena  to  appear  and  answer 
was,  as  to  the  return-day  and  month, 
served  in  blank,  it  was  held  not  a 
good  service,  and  proceedings  under  it 
were  set  aside.  Arden  v.  Waldon,  1 
Edw.  631.  It  is  essential  that  a  sub- 
poena be  served  by  the  sheriff  or 
coroner.  Rev.  Sup.,  "  Chancery,"  §  1. 
Every  subpoena  or  process  for  appear- 
ance must  be  served  by  the  same 
officers  now  authorized  to  serve  writs 


of  summons  and  other  common  law 
processes  on  the  person  to  whom  it  is 
directed,  or  a  copy  thereof  left  at  his 
dwelling-house  or  usual  place  of 
abode,  by  one  of  said  officers,  at  least 
ten  days  before  its  return.  Bev.  Stip., 
"  Chancery,"  §  1.  The  subpoena  may 
be  served  either  by  the  sheriff,  the 
under-sheriff  or  by  a  special  deputy 
authorized  by  writing  for  that  pur- 
pose. In  case  of  the  disability  of  the 
sheriff,  the  coroners  of  the  county,  or 
either  of  them,  shall  execute  the  office 
of  sheriff,  until  another  sheriff  shall 
be  appointed  and  qualified  to  act. 
Bev.,  "Sheriffs,"  ^  39.  But  in  such 
case  the  writ  should  be  addressed  to 
the  coroner. 

The  actual  domicile  of  the  wife  is 
not  the  legal  domicile  of  the  hus- 
band ;  nor  can  it  be  regarded,  con- 
trary to  the  fact,  as  his  actual  resi- 
dence Avithin  the  meaning  of  the 
statute  regulating  the  service  of  pro- 
cess. MePherson  v.  Howell  2  Beas. 
35.  A  subpoena  against  husband  and 
wife  may  be  served  on  the  husband, 
but  if  the  proceedings  are  against  her 
separate  estate,  she  should  be  served 
personally.  Service  against  an  infant 
is  to  be  made  on  the  infant  personally. 
This  appears  to  be  the  English  prac- 
tice. See  Yarnan  v.  Marshall,  Dick. 
77 ;  Baker  v.  Holmes,  Id.  19.  In 
Cooper  V.  Green,  2  Addams^  Eccl.  Bep., 
it  was  held  that  process  served  on  a 
minor  must  be  in  presence  of  his 
natural  or  legal  guardian.  The  ser- 
vice of  a  subpoena  upon  the  mother  or 
father-in-law  of  an  infant  was,  on 
motion  for  that  purpose,  allowed 
where  the  mother  secreted  the  infant 
parties  to  the  suit.  2  3Iad.  Ch.  Pr. 
158.      But    in   Mortimer   v.   Gropsey, 


20 


FORMS   OF   PLEADINGS. 


have  considered  in  that  behalf;  and  this  you  are  not  to  omit, 
under  the  penalty  of  five  hundred  dollars. 

Witness  his  Honor,  ,  Chancellor  of  our  said  state, 

at  Trenton,  the  day  of  ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and 
Solicitor. 

Clerk. 

Notice. — The  defendant  is  not  required  to  appear  at  Trenton  in  person,  at 
the  return-day,  but  if  he  intends  to  make  a  defence  it  is  only  necessary  for  him 
to  answer,  plead  or  demur  to  the  bill  within  the  time  required  by  law. 

Endorsement  on  Subpcena. 

In  Chancery  of  New  Jersey. 

( Title  of  cause.)  >     Subpcena  to  answer. 

Returnable  day  of  ,  18     . 

Solicitor. 

{Sheriff's   return,  endorsed   by  him.)     "  Served "    (or  "  duly 
served.")  ,  Sherif. 

{Fees.)     Serving  writ,  $ 

Mileage  and  return,  $ 


where  the  mother  concealed  the  in- 
fant, a  motion  was  made  that  service 
upon  her  be  deemed  good  service. 
The  Chancellor  refused  it,  and  ordered 
that  publication  be  made  under  the 
statute  as  for  a  concealed  defendant, 
stating  that  upon  the  expiration  of  the 
allotted  time,  if  no  appearance  was 
entered,  the  court  would  appoint  a 
guardian  ad  litem.  A  similar  course 
was  pursued  where  the  non-resident 
defendant  was  a  lunatic.  1  Uoff.  Ch. 
Pr.,  vol.  1,  p.  194.  Service  upon  a 
corporation  is  made  upon  some  prin- 
cipal officer  or  a  director.  Rev., 
"  Chancery,"  ?  22 ;  see  Hinde's  Pr.  87. 
A  lunatic,  like  an  infant,  is  served 
personally,  and  it  should  be  in  pres- 
ence of  some  competent  person.  It  is 
provided   by  statute  that   every  sub- 


pcena (or  other  writ  or  process)  shall 
be  subscribed  or  endorsed  with  the 
name  of  the  solicitor  (or  party  where 
there  is  no  solicitor),  and  signed  and 
sealed  by  the  clerk,  before  service  or 
execution  thereof;  and  that  the  names- 
of  all  defendants  in  any  suit,  who  are 
residents  of  the  same  county,  shall  be 
inserted  in  one  subpoena.  Rev.,  p. 
105,  §^  6,  7;  and  see  rule  51.  In  in- 
junction cases,  if  the  complainant 
omit  to  have  the  subpcena  served  and 
returned  at  the  time  it  was  made 
returnable,  the  injunction  may  be  dis- 
solved. West  V.  Smith,  1  Gr.  Ch.  309; 
Lee  V.  Cargill,  2  Stock.  331.  The 
sheriff's  return  to  the  subpoena  is  con- 
clusive, and  cannot  be  contradicted  by 
affidavits,  unless  collusion  be  shown 
between  the  sheriff  and  the  complain- 


OF   SUBPfENA,  &C. 


21 


( When  the  sheriff  employs  a  special  deputy  to  serve  the  writ,  he 
should  endorse  thereon  an  authorization  in  the  following  form,  and 
sign  it ;  this  act  cannot  be  performed  by  his  deputy  :){a)  "  I 
hereby  depute  and  appoint  to  execute  the  within  writ." 

Witness  my  hand  and  seal  this  day  of  ,  a.  d.  18     . 

Sheriff,     [l.  s.] 

Form  of  citation  in  divorce. (6)  New  Jersey,  to  wit — 
The  State  of  New  Jersey  to  — Greeting  : 

You  are  hereby  cited  to  be  and  appear  before  our  Chancellor, 
[l.  s.]    in  our  Court  of  Chancery,  at  Trenton,  on  the         day  of 
next,  {or  "  instant,"  as  the  case  may  be,)  to  answer  to  the 
petition  of  exhibited  against  you,  and  hereof  fail  not. 

Witness  ,  our  Chancellor,  at  Trenton,  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and 

Solicitor. 

Clerk 


ant  or  his  solicitor.  Corey  v.  Voorhees, 
1  Gr.  Cfi.  5.  Where  a  subpoena  was 
not  served  by  an  officer,  a  request 
written  on  the  back  of  the  subpoena  to 
the  clerk  to  enter  an  appearance  for 
the  defendant  would  have  been  suffi- 
cient. Henderson  v.  Hopper,  April, 
1827.  Under  the  present  practice, 
verification  of  the  signature  would  be 
required. 

Where  the  United  States  or  the 
state  is  interested,  the  district  attorney 
or  attorney-general  must  be  served. 
(For  notice  under  New  Jersey  statute 
in  case  of  the  state,  see  post  p  22.) 
Service  on  a  keeper  of  a  prison 
ordered  to  be  good  service  on  a  pris- 
oner in  his  custody.  Hinde's  Pr.  85  ; 
and  see  Hoff.  Ch.  Pr.,  vol.  1,  p.  106, 
et  seq. 

(a)  A  sheriff  cannot  appoint  a 
special  deputy  by  parol.  Meyer  v. 
Patterson,  1  Stew.  Eq.  240. 

(6)  By  an  act  amendatory  of  the 
act   concerning   divorces,   {Rev.  Sup., 


^'Divorces,"  §  1,)  it  is  provided  that 
the  citation  may  issue  at  any  time,  and 
may  require  the  defendant  to  answer 
the  petition  at  any  time  not  less  than 
thirty  days  subsequent  to  the  date  of 
issuing  the  writ.  It  is  the  practice 
for  the  clerk  to  prepare  the  citation 
and  forward  it  to  the  solicitor,  who 
will  hand  it,  together  with  a  certified 
copy  of  the  petition,  to  the  sheriff  to 
be  served.  Service  of  the  citation  and 
copy  of  petition  may  be  on  the  defend- 
ant personally,  or  by  leaving  copies 
at  his  or  her  dwelling-house,  at  least 
twenty  entire  days  before  its  return. 
The  sheriff'  will  endorse  the  word 
"  served  "  or  "  cited  "  on  the  back  of 
the  writ,  and  add,  "together  with  a 
certified  copy  of  the  petition  in  the 
above  cause,"  and  sign  his  name  and 
designation  thereto.  Rev.,  "Divorces," 
§  6,  et  seq.  An  acknowledgment  of 
service  of  a  copy  of  the  citation  only 
is  not  evidence  of  a  legal  service,  to 
give  the  court  jurisdiction,  where  the 


22  FORMS   OF   PLEADINGS. 

Form  of  notice  to  State  of  New  Jersey  .(a)    ( Title  of 
cause — naming  all  the  parties  to  the  suit.) 

To  the  State  of  New  Jersey : 

Notice  is  hereby  given  that  in  the  cause  above  stated,  the  State 
of  New  Jersey  is  made  a  party  defendant  to  the  bill  of  com- 
plainant, because  it  is  therein  alleged  that  said  state  holds  a  cer- 
tain recognizance*  entered  into  by  the  said  upon  an  indict- 
ment found  against  him  by  the  grand  jury  of  the  county  of 
Hudson  {or  after  *,  "  given  by  and  ,  on  the 
day  of  last  past,  for  two  thousand  dollars,  to  appear  and 
answer  to  a  certain  indictment  presented  to  the  Court  of  Oyer 
and  Terminer  and  General  Jail  Delivery  of  the  county  of  Hud- 
son," or  as  the  case  may  be;)  and  that  the  day  of  , 
eighteen  hundred  and  ,  is  hereby  stated  for  the  return  of 
this  writ. 

Witness  his  Honor,  ,  Chancellor  of  the  said  state, 

at  Trenton,  the  day  of  ,  in  the  year,  &c. 

(Signature  of  clerk.) 
Solicitor. 

Form  of  the  ticket.(6)    {Title  of  cause.) 
Sir — You  are  made  a  defendant  in  this  cause,  and  are  sub- 
poenaed to  answer,*  becausef  you  hold  a  mortgage  upon  the 

defendant  does  not  appear.  There  (6)  In  foreclosure  suits,  a  ticket 
should  be  evidence  of  the  service  of  a  should  be  directed  to  each  of  the  de- 
copy  of  the  petition  also.  Stone  v.  fendants  other  than  the  mortgagor, 
Stone,  10  C.  E.  Gr.  445.  his  heirs,  executors,  administrators  or 
(a)  Endorse  the  notice  with  the  title  assigns,  and  served  at  the  time  of 
of  the  suit,  name  of  the  solicitor  and  serving  the  subpoena ;  and  a  copy  of 
the  return-day  of  the  notice.  The  every  ticket  so  served  should  be  an- 
act  prescribes  that  the  notice  shall  nexed  to  the  original  subpcena,  and 
contain  the  names  of  all  the  parties  returned  with  it  to  the  clerk's  office, 
to  the  suit.  The  return-day  should  be  The  clerk  will  not  tax  fees  for  draw- 
at  least  ten  days  from  the  date  of  the  ing  tickets  unless  copies  are  returned 
teste,  as  in  subpoenas,  and  the  notice  with  subpcena.  The  sheriff  should 
must  be  under  the  seal  of  the  court.  endorse  the  word  "served"  upon  the 
The  notice  may  be  served  as  subpoenas  back  of  each  copy.  The  practice  of 
are  served,  or  the  attorney-general  making  affidavit  of  the  service  of 
may  acknowledge  due  and  legal  ser-  tickets  is  unnecessary,  and  no  costs 
vice  thereof.  will   be  allowed   for   such   affidavits. 


ABSENT   DEFENDANTS,    &C.  23 

premises,  a  foreclosure  and  sale  of  which  is  prayed  in  the  com- 
plainant's bill.     Dated,  (same  as  teste  of  subpccna.) 

(Signature  of  solicitor  of  complainant.) 
To 

(Or,  after  the  *,  "because  you  have  a  judgment  against  John 
Den,  the  mortgagor  in  the  complainant's  bill  mentioned,  which 
is  alleged  to  be  a  lien  upon  the  premises,  a  foreclosure  and  sale 
of  which  is  prayed  for  in  this  suit.")(a) 

(Or,  after  the  *,  "because  you  claim  as  the  widow  of  (the 
mortgagor)  an  interest  as  tenant  in  dower  in  the  mortgaged 
premises.'^) 

(Or,  after  the  *,  "  because  it  is  alleged  in  the  bill  of  complaint 
in  this  cause,  that  you  are  entitled  to  an  inchoate  right  of  dower 
in  the  premises,")  (concluding  as  first  above.) 

(Or,  after  the  *,  "because  you  have  an  interest  as  tenant  by 
the  curtesy  in  a  portion  of  the  premises,"  &c. 

(Or,  after  the  f,  "you  hold  a  judgment  on  a  claim  of  lien ; " 
or,  if  no  judgment,  say,  "  a  lien  claim  " — against  the  mortgaged 
premises  in  the  complainant's  bill  described,  which  is  alleged  to 
be  a  lien  upon  the  premises,  &c.) 

(Or,  after  the  *,  "because  you  hold  a  mortgage  upon  the 
premises  in  the  complainant's  bill  described,  which  is  alleged  to 
be  a  lien  upon  the  said  premises.") 

Form  of  affidavit  of  defendant's  non-residence. (6) 

county,  ss. —  ,  sheriff  of  the   county  of  , 

being  duly  sworn  according  to  law,  on  his  oath  says — That  he 
has   duly  inquired   for  ,  one  of  the  defendants   named 

No   fees   are  allowed   the  sheriff  for  themselves  within  the  state,  or  cannot 

serving    tickets.      Eev.,    "Chancery,"  upon  due  inquiry  be  found  therein, 

^  9-  the  sheriff  or  other  person  to  whom 

(a)  It  is  usual    for  the  solicitor  to  the  process   is   delivered   for   service 

supply  the  sheriff  with  copies  of  the  will  so  return,  and  will  make  an  affi- 

tickets  to  be  served.     The  above  are  davit  of  the  fact  on  the  back  of  the 

examples    of   the    substance    of    the  subpoena    or    on    a    paper    annexed 

notices  required  to  be  given  by  ticket  thereto.     In  case  of  non-residence,  the 

in  foreclosure  cases.  affidavit  should  mention  the  state  in 

(6)  In  case  any  of  the  defendants  which    the    absent    defendant    lives, 

reside   out   of   the   state,   or   conceal  Where  the  subpoena  is  returned  with 


24  FORMS  OF   PLEADINGS. 

in  the  withia  process,  for  the  purpose  of  serving  him  therewith, 
and  has  not  been  able  to  find  him  in  his  county ;  and  this  depo- 
nent is  credibly  informed,  and  verily  believes,  that  the  saidf 
*  is  out  of  this  state,  and  that  he  resides  in  the  State 
of  New  York  ;  [^or,  "  in  some  other  of  the  United  States ; "  or, 
"  in  the  Republic  of  France ; "  or  as  the  case  may  be ;  or,  ajter 
the  *,  "  cannot,  upon  due  inquiry,  be  found  within  this  state  ; " 
or,  after  the  *,  "  conceals  himself  within  this  state ; "  or  in  case 
of  a  cor'poration  defendant,  ajter  the  f,  "  {naming  corpo- 

ration) is  a  foreign  corporation  of  the  State  of  ,  and  that 

none  of  the  officers  and  directors  can  be  found  within  this  state, 
upon  whom  the  subpoena  could  be  served. "](a) 

{Signature  of  sheriff.) 

Sworn   and   subscribed,  at  ,  the  day  of  , 

A.  D.  ,  before  me.  {Signature  of  officer.) 

Form  of  order  of  publication.  (6) 

{Title  of  cause.) 
The  complainant  {or  "  petitioner ")  having  filed  his  bill  {or 
*'  petition  ")  in  the  above-stated  cause,  and  process  of  subpoena 
{or  "  citation  ")  having  been  issued  and  returned  according  to  law. 

an  affidavit  by  the  sherifT  that  he  has  party  could  be  compelled  to  appear 
made  due  and  diligent  inquiry  for  the  and  answer,  but  until  he  did  ap- 
defendant,  and  was  informed  and  be-  pear,  no  decree  could  be  made, 
lieved  that  he  was  not  a  resident  of  Brinkerhoff  v.  Franklin,  6  C.  E.  Or. 
his  county  at  that  time,  but  of  another  334.  The  complainant  may  now, 
state,  the  statutory  order  for  publica-  however,  at  his  discretion,  require  a 
tion  is  warranted,  although  the  de-  defendant  to  answer.  Giveans  v. 
fendant  was  a  resident  of  this  state.  McMurtrey,  1  C.  E.  Or.  468.  In 
Equitable  Society  v.  Laird,  9  C.  E.  case  it  shall  be  made  to  appear. 
Or.  319.  In  a  case  of  concealment,  by  affidavit  or  otherwise,  to  the  satis- 
the  affidavit  is  necessarily  on  the  faction  of  the  Chancellor,  that  a  de- 
belief  of  the  deponent,  stating,  as  fully  fendant  is  out  of  the  state,  or  cannot, 
as  possible,  the  grounds  of  his  belief.  upon  due  inquiry,  be  found  therein, 
SeeHoff.  Ch.  Pr.,  vol.  1,  p.  19\.  or   that   he  conceals   himself  within 

(a)  Eev.,  "  Chancery,"  ?  22 ;  and  see  this  state,  he  shall   be  deemed   and 

1  Barb.  Ch.  Pr.  *96.  taken  to  be  an  absent  defendant,  and 

(6)  The  only  right  to  make  a  decree  the  Chancellor  may,  by  order,  direct 

against  a  defendant  who  does  not  ap-  such    absent    defendant     to    appear, 

pear,  is  derived   from   Rev.,  "  Chan-  plead,  answer  or  demur  to  the  bill  at 

eery,"  p.  109,  §  28.     Before  this,  the  a   certain   day  therein   to  be  named. 


ABSENT   DEFENDANTS,    &C. 


25 


And  it  appearing  by  affidavit  that  the  defendant,  ,  resides 

out  of  the  State  of  New  Jersey,  {or  "conceals  himself  within 
this  state ; "  or,  "  cannot,  upon  due  inquiry,  be  found  in  this 
state,")   and    that    process  could   not    be   served   upon   him : 


not  less  than  one  nor  more  than  three 
months  from  the  date  of  such  order  ; 
of  which  order  such  notice  as  the 
Chancellor  shall  by  rule  direct  shall, 
within  ten  days  thereafter,  be  served 
personally  on  the  defendant,  by  a  de- 
livery of  a  copy  thereof  to  him,  or  be 
published  in  one  or  more  of  the  public 
newspapers  printed  in  this  state,  and 
designated  in  the  order,  for  four  weeks 
successively,  at  least  once  in  each 
week.  (The  practice  in  proceedings  by 
petition  or  bill  for  divorce,  as  to  absent 
defendants,  is  the  same  as  above.) 
And  in  case  of  such  publication,  a 
copy  of  such  notice  shall  be  mailed  to 
such  defendant,  prepaid,  directed  to 
him  at  the  post-office  nearest  his  resi- 
dence or  the  post-office  at  which  he 
usually  receives  his  letters,  unless 
such  residence  or  post-office  be  un- 
known and  cannot  be  ascertained  upon 
making  such  inquiries  as  the  Chan- 
cellor may  by  rule  prescribe  in  such 
case,  which  said  notice  shall  also  be 
published  or  served  in  any  other 
manner  that  the  Chancellor  may  see 
proper  in  the  same  to  direct.  And  if 
the  defendant  shall  not  appear,  &c., 
by  the  time  so  limited,  or  within  some 
further  time,  to  be  allowed  by  the 
•Chancellor,  if  he  shall  think  proper, 
and  on  proof  of  personal  service  or 
the  publication  and  the  mailing  of 
said  notice  as  aforesaid,  and  of  the 
performance  of  the  direction  contained 
in  said  order  to  the  satisfaction  of  the 
Chancellor,  and,  on  filing  Avith  the 
clerk  proof  of  the  publication  of  the 
notice,  and  of  the  mailing  thereof,  or 
of  the  in(|uiry  for  the  residence  of  the 


defendant,  if  the  same  cannot  be  ascer- 
tained, the  bill  may  be  taken  pro  con- 
fesso  against  such  absent  defendant. 
Bev.,  "Chancery,"  §  18;  amended 
by  Pamph.  L,  1893,  chap.  CXIV. 
It  is  further  provided,  that  any 
defendant  upon  whom  such  notice  is 
served  as  therein  directed  shall  be 
bound  by  the  decree  in  such  case 
as  if  he  were  served  with  process 
within  the  state,  and  that  in  cases 
where  the  notice  was  published  and 
mailed,  if  such  defendant  shall  make 
oath  that  he  did  not  receive  the 
same,  and  that  it  did  not,  in  any  way, 
come  to  his  knowledge  within  ten  days 
as  aforesaid,  or  in  cases  where  actual 
service  is  sworn  to,  it  shall  satis- 
factorily appear  to  the  Chancellor,  by 
proof,  that  such  service  was  not  made, 
the  Chancellor,  before  executing  a 
decree  against  such  defendant,  may 
require  the  complainant  to  give  bond 
to  abide  such  decree  or  order  touching 
the  restitution  of  the  estate  and  effects 
of  such  absent  defendant,  or  the  re- 
payment of  any  sum  of  money  the 
complainant  may  receive  by  virtue  of 
such  decree,  but  which  shall  after- 
wards be  made  to  appear  not  to  be 
due  and  owing  to  him,  as  may  be 
equitable ;  and  in  case  no  such 
security  is  given,  no  execution  is  to 
issue,  but  the  estate  and  eflects  of  such 
absent  defendant  may  remain  se- 
questered under  the  direction  of  the 
Chancellor ;  and  if  such  absent  de- 
fendant, his  heirs,  &c.,  shall,  within 
six  months  after  having  notice,  in 
writing,  of  such  decree,  or  within 
three  years  after  such   decree,  if  no 


26  FOEMS   OF   PLEADINGS. 

It  is,  on  this  day  of  ,  one  thousand  eight  hun- 

dred and  ,  on  motion  of  ,  of  counsel  with  the 

complainant  {or  "  petitioner/')  ordered  that  the  said  absent 
defendant  do  appear,  plead,  answer  or  demur  to  the  complain- 
ant's bill  (or,  in  case  of  petition,  say,  "  do  appear  and  answer  the 
petitioner's  petition  ")  on  or  before  the  day  of  next, 

or  that,  in  default  thereof,  such  decree  be  made  against  him  as 
the  Chancellor  shall  think  equitable  and  just.  And  it  is  further 
ordered,  that  the  notice  of  this  order,  prescribed  by  the  rules 
of  this  court,  shall,  within  ten  days  hereafter,  be  served  per- 
sonally on  the  said  absent  defendant,  by  a  delivery  of  a  copy 
thereof  to  him  [^or,  in  case  of  a  corporation,  "  upon  one  of  the 
officers  or  directors  of  the  said  defendant  company,"]  or,  in  default 
of  such  service,  that  said  notice  be  published  within  the  said 
ten  days  in  ,  a  public  newspaper  printed  at  {in  the  county 

where  land  lies;  or,  in  divorce  suits,  in  the  county  where  the 
parties  resided  at  the  time  of  the  desertion  or  ivjury  complained 
of,){a)  in  this  state,  and  continued  therein  for  four  weeks  succes- 
sively, at  least  once  in  each  week,  and  that  a  copy  thereof  be 
also  mailed,  within  the  same  time,  to  the  said  absent  defendant, 
directed  to  his  post-office  address,  if  the  same  can  be  ascertained, 
in  the  manner  prescribed  by  law  and  the  rules  of  this  court. 

notice  shall  be  given,  petition  the  That  a  notice  sent  to  an  absent  de- 
Chancellor  touching  the  matter  of  fendant  w;is  not  delivered  to  her,  on 
such  decree,  and  pay,  or  secure  to  be  account  of  her  illness,  cannot  affect 
paid,  such  costs  as  the  Chancellor  the  complainant.  Horner  v.  Corning, 
shall  direct,  such  petitioner  may  be  per-  1  Sleic.  Eq.  254. 

milted  to  appear  and  answer  the  com-  (a)    When   the  defendant   is    non- 

plainant's   bill,   and   thereupon   such  resident    and    jurisdiction    must    be 

proceedings  shall   be  had  as  if  such  acquired    by    pub  ication,   it    should 

absent    defendant    had   appeared    in  be   made,  in   cases  relating  to   land, 

season,  and  no  decree  had  been  made;  in   the   county   where   the   lands   lie 

otherwise,  the  decree  shall  be  deemed  (see   rule    57),   and    in    other    cases, 

to  be  confirmed,  and  the  decree  shall  in     the    county    where    the     parties 

be  executed,  as  in  cases  where  the  ab-  resided   when  the  injury  complained 

sent  defendant  had  appeared.   Pamph.  of  occurred.      Stone  v.  Stone,  1  Steiv. 

L.,  1893,  cJwp.  CXI  v.;  Eev  ,  ''Chan-  Eq.  409. 
eery,"  U  19,  21. 


ABSENT   DEFENDANTS,    &C.  27 

Order  of  publication  (in  foreclosure  suits)  for  ab- 
sconding, concealed  or  unknown  mortgagor  or  his 
unknown  heirs. (a) 

{Title  of  cause.) 

It  satisfactorily  appearing  to  this  court  that  the  defendant, 
,  the  mortgagor  in  the  bill  of  complaint  in  this  cause  men- 
tioned, has  absconded;  {or,  "has  concealed  himself;"  or,  "is 
unknown;"  or,  "is  dead,  and  his  heirs  or  devisees  are  wholly 
unknown  ;"  or,  "some  of  them  are  unknown  :")     It  is,  on  this 
day  of  ,  &c.,  on  motion  of  ,  of  counsel  with 

the  complainant,  ordered,  that  the  unknown  owners  of  all  that 
certain  {describe  mortgaged  premises  by  abuttals  and  boundaries, 
or  otherwise,  as  briefly  as  practicable,)  do  appear,  plead,  answer 
or  demur  to  the  complainant's  bill,  on  or  before  the  day 

of  next,  {six  months  from  date  of  order ^  or  that,  in  default 

thereof,  such  decree  be  made  against   them  as  the  Chancellor 
shall  think  equitable  and  just.     And  it  is  further  ordered,  that 
this  order  shall,  within  twenty  days  hereafter,  be  published  in 
,  a  newspaper  printed  at  ,  in  this  state,  and  con- 

tinued therein,  at  least  once  a  week,  to  within  ten  days  of  the 
expiration  of  the  time  herein  limited  to  appear,  plead,  answer 
or  demur. 

(a)  It  is  provided,  {Rev.,  "Mort-  same,  (by  abuttals  or  boundaries,  or 
gages,"  §  6,  p.  704,)  that  where  any  otherwise,)  and  name  the  mortgagor 
person  holds  a  mortgage  against  any  or  person  last  owning  the  land,  and 
lands  in  this  state,  and  the  mort-  shall  direct  such  absent  or  unknown 
gagor,  or  those  holding  under  him,  owner  to  appear,  plead,  answer  or  de- 
has  absconded,  concealed  himself,  is  mur  to  the  bill  at  a  time  not  less  than 
unknown  to  the  holder  of  said  mort-  six  months  from  the  date  of  the  order, 
gage,  or  is  dead,  and  his  heirs  or  de-  This  order  shall  be  published  in  a 
visees  are  wholly  unknown,  or  some  newspaper  of  this  state,  or  elsewhere, 
part  of  them  are  unknown,  and  any  of  Avithin  twenty  days  from  the  date 
such  facts  are  stated  in  the  bill,  and  thereof,  and  continued  therein  at  least 
also  the  name  of  the  mortgagor  or  once  a  week,  to  within  ten  days  of  the 
person  holding  under  him,  an  order  expiration  of  the  time  therein  limited 
of  publication  may  issue  against  such  to  appear,  plead,  answer  or  demur, 
absent  or  unknown  owner;  which  Proof  of  publication  is  to  be  made  as 
order  shall  describe  such  land  in  such  in  other  cases,  whereupon  the  com- 
manner  and  terms  as  will  identify  the  plainant  will  be  entitled  to  his  decree. 


28 


FORMS   OF   PLEADINGS. 


Order    of  publication    (in    partition    suits)    where 
some  or  one  of  the  owners  are  unknown. (a) 

[Title  of  cause?) 

The  complainant  having  filed  his  bill  in  this  court  for  the 

partition  of  the  real  estate  of  [naming  the  ancestor  or  person  last 

owning  said  real  estate,  in  severalty,)  hereinafter  described,  and 

it  satisfactorily  appearing  to  this  court  that  some  of  the  owners 

of  the  said  real  estate  are  unknown  :    It  is,  on  this  day  of 

,  eighteen  hundred  and  ,  on  motion  of,  &c.,  ordered 

that  such  unknown  owners  of  all  that  certain  {identify  the  land 

by   abuttals   and   boundaries,  or   otherwise^  do   appear,  plead, 

answer  or  demur  to  the  said  bill,  on  or  before  the  day  of 

next,  (six  months,)  or  that,  in  default  thereof,  such  decree 

be  made  against  them  as  the  Chancellor  shall  think  equitable  and 

just.     And  it  is  further  ordered,  that  this  order  shall,  within 


(a)  The  provisions  of  the  statute, 
(Rev.,  "Partition,'"  p.  803,  |  31,)  are 
substantially  the  same  as  that  last 
cited;  it  provides  for  proceedings  by- 
publication  where  some  or  any  of  the 
owners  of  real  estate  held  by  co- 
parceners, joint  tenants,  or  tenants  in 
common,  are  unknown.  It  has  been 
decided  that  the  act  of  1891,  p.  96, 
does  not  apply  to  cases  of  partition. 

The  issuing  of  a  subpoena  against 
a  non-resident,  and  taking  an  order 
for  his  appearance,  and  publishing 
the  notice  thereof  required  by  law, 
will  not  give  the  court  jurisdiction 
over  either  his  person  or  the  subject- 
matter  of  the  bill,  if,  from  the  nature 
of  the  case,  the  court  has  no  jurisdic- 
tion over  either.  Gifford  v.  Thome,  3 
Hal.  Ch.  90 ;  S.  C,  on  appeal,  1  Stock. 
702.  Where  a  man  and  his  wife  were 
made  defendants,  and  he  was  served 
with  process,  but  she  was  out  of  the 
state,  it  was  held  necessary  to  have  an 
order  of  jiublication  against  her,  unless 
her  husband  appeared  for  her.  3fS., 
Williamson,    C,   1829.      So   where   a 


husband  has  separated  from  his  wife, 
and  he  resided  out  of  the  state,  service 
on  her,  at  her  domicile,  would  be  an 
insufficient  service  upon  him.  Mc- 
Pherson  v.  Housel,  2  Beas.  35;  and  see 
Rev.,  "Married  Women,"  p.  638,  §  10. 
A  complainant  who  procures  an  order 
of  publication,  directing  an  improper 
or  insufficient  publication  to  be  made, 
takes  it  at  his  peril.  Stone  v.  Stone,  1 
Stew.  Eq.  409  In  Wetmore  v.  Dyer,  1 
Gr.  Ch.  386,  it  was  held  that,  by  the 
practice  of  the  court,  foreign  publica- 
tion was  required  where  all  the  de- 
fendants reside  out  of  the  state,  and 
the  reason  for  this  rule  of  practice  is 
stated  in  the  opinion  of  the  Chancellor 
in  Oram  v.  Dennison,  2  Beas.  438. 
Since  the  statute,  (Rev.,  "  Chancery," 
^  18,)  however,  this  rule  has  not  been 
enforced  in  practice,  and  is  now 
superseded.  See  supra.  The  order 
of  the  Chancellor,  declaring  that  pub- 
lication in  the  case  of  a  non-resident, 
&c.,  failing  to  appear,  has  been  made 
to  his  satisfaction,  directing  a  decree, 
is  conclusive  upon  the  question  as  be- 


ABSENT   DEFENDANTS,    &C.  29 

twenty   days   hereafter,  be   published    in    [a  newspaper  of  the 
county, ){a)  printed  at  ,  in  this  state,  and  continued  therein, 

at  least  once  each  week,  to  within  ten  days  of  the  expiration  of 
the  time  hereby  limited  to  appear,  plead,  answer  or  demur. 

Order  of  publication  for  defendants  supposed  to  be 
dead,  their  heirs,  devisees  and  personal  representa- 

tives.(6) 

{Title  of  cause.) 
The  complainant  having  filed  his  bill  of  complaint  in  the 
above-stated  cause  [affecting  or  concerning  the  title  to  the  lands 
mentioned  and  described  in  said  bill,]  and  it  appearing  by  the 
allegations  of  said  bill  of  complaint  [duly  verified  by  afiidavit, 
as  required  by  law,]  that  A  B,  or  his  heirs,  devisees  or  personal 
representatives,  are  proper  parties  defendant  to  said  bill  of 
complaint,*  and  that  the  complainant,  after  diligent  and  careful 
inquiry  therefor,  made  as  in  the  case  of  absent  defendants,  has 
been  unable  to  ascertain  whether  the  said  A  B  is  alive,  (or, 
after  *,)  and  that  said  A  B  is  dead  (or)  believed  to  be  dead,  and 
the  complainant  is  unable  to  ascertain  the  names  and  residences 
of  his  heirs,  devisees  or  personal  representatives,  or  of  such  of 
them  as  are  proper  parties  defendant  to  said  bill  of  complaint :  It 
is  on  this,  &c.,  ordered  that  the  said  A  B,  or  his  heirs,  devisees 
or  personal  representatives,  do  appear,  plead,  answer  or  demur  to 
the  complainant's  bill  on  or  before  the  {two  months  after  date  of 
order  unless  for  some  special  reason  further  time  be  required,)  or 
that  in  default  thereof  such  decree  be  made  against  them  as  the 
Chancellor  shall  deem  equitable  and  just.     And  it  is  further 

tween    such    non-resident    defendant  Pamph.   L.,    1891,  p.   96.      And   see 

and  the  purchaser  under  the  decree.  Pamph.  L.,  1891,  p.  107,  applicable  to 

McCahill  y.  Equitable  Society,  11  C.  JE.  foreclosure    suits,   where    the    words 

Gr.  533.  above  in  [  ]  are  not  required.    Also, 

(a)  Where  the  residence  of  a  de-  Pamph.  L.,  1892,  p.  192.     See,  also, 

fendant  (in  a  partition  suit)  was  un-  Pamph.    L.,    1893,    chap.     CLVIII., 

known,  the  order  was  directed  to  be  which  applies  generally  to  all  suits, 

published  at  or  near  his  last  known  By  reference  to  the  statutes  the  prac- 

place  of  residence,  and  a  copy  mailed  titioner  will  be  enabled  to  frame  his 

to  such  last  known  place  of  residence.  order  with  the  necessary  modifications 

Stockton  V.  Stockton,  July,  1875.  to  comply  with   the  language  of  the 

(6)  Pi,ev.   Sup.,    ^^  Chancery,"    §    7;  statutes. 


30  FORMS   OP  PLEADINGS. 

ordered,  that  notice  of  this  order,  entitled  in  the  court  only,  not 
in  the  cause,  addressed  to  said  A  B,  his  heirs,  devisees  and  per- 
sonal representatives,  and  containing  a  brief  statement  of  the 
object  of  the  suit,  be  published  within  ten  days  from  the 
date  hereof,  in  *  ,  one  of  the  public  newspapers  printed  and 
published  at  ,  in  the  county  of  ,  in  this  state,  and 

continued  therein  for  six  weeks  successively,  at  least  once  in 
every  week,  and  that  a  copy  thereof  be  also  mailed  to  the  said 
A  B,  his  heirs,  devisees  and  personal  representatives,  or  any  of 
them,  directed  to  their  post-oiSce  address,  if  the  same  can  be 
ascertained. 

Notice  to  absent  defendants,  (a) 

In  Chancery  of  New  Jersey. 
To  [absent  defendants,  naming  them :) 

By  virtue  of  an  order  of  the  Court  of  Chancery  of  New  Jersey, 
made  on  the  day  of  the  date  hereof,  in  a  cause  wherein  , 

executors  of  ,  deceased,  are  complainants,  and  you  (and 

others)  are  defendants,  you  are  required  to  appear,  plead,  answer 
or  demur  to  the  bill  of  said  complainants,  on  or  before  the 
day  of  next,  or  the  said  bill  will  be  taken  as  confessed 

against  you. 

The  said  bill  is  filed  to  compel  the  specific  performance  of  a 
contract  made  ,  eighteen  hundred  and  ,  by  the  de- 

fendant, ,  with  the  said  ,  to  convey  to  him  a  house 

and  lot  in  the  township  of  ,  in  the  county  of  ;  and 

you,  ,  are  made  defendant  because  you  have  since  taken  a 

lease  of  said  house ;  (or,  "  for  partition  of  certain  lands  in  the 
township  of  ,  in  the  county  of  ,  of  which 

died  seized,  and  you,  ,  are  made  defendant  because  you 

hold  a  mortgage,  given  by  one  of  the  tenants  in  common,  upon 
his  estate  therein,  and  you,  ,  are  made  defendant  because 

(a)  See  7-ules  57,   58,   59   and   60.  531.     Where  the  notice  was  entitled 

An  error  in  the  name  of  the  paper  in  in  the  cause  and  not  directed  to  the 

which  the  notice  to  an  absent  defend-  defendant  nor  mailed  within  twenty 

ant  was  directed   to  he  published  is  days  after  the  date  of  the  order,  the 

amendable  after  sale  under  execution.  defendant  was  lield  not  to  be  within 

Equitable   Co.  v.  Laird,  9  C.  E.   Gr  the  jurisdiction  of  the  court.     Karr  v. 

319;  S.  C,  on  appeal,  U    C.  E.  Gr.  Karr,  4  C*.  E.  Gr.  427. 


ABSENT   DEFENDANTS,   &C.  31 

you  are  one  of  the  tenants  in  common  therein ; "  or,  "  against 
you  for  a  divorce  from  the  bond  of  matrimony  ;  "  or,  "  against 
you  for  a  divorce  from  bed  and  board ; "  or,  "  against  you  by 
the  complainant,  as  your  wife,  for  proper  alimony  and  mainte- 
nance ;  "  or,  "  to  foreclose  a  mortgage  given  *by  and  wife 
to  ,  dated  ,  eighteen  hundred  and  ,  on  lands 
in  the  city  of  Newark ;  and  you,  and  ,  are  made 
defendants  because  you  hold  encumbrances  on  said  lands  ;  you, 
,  are  made  defendant  because  you  own  said  lands  or  some 
part  thereof,"  or  as  the  case  may  be.) 

(Signature  of  solicitor.) 
Dated,  day  of  (Post-office  address.) 

Dickinson's  Cliancery  Precedents. 

REVISED    EDITION. 


CORRECTION. 
Page   31,   after  the  formal    part  of   "Notice    to    absent 
defendant  in  divorce  case,"  as  printed,  state  the  object  of 
the  suit,  as  in  the  next  preceding  form. 

[J\anie  of  solicitor  and  his  post-office  address.) 
Dated,  &c. 

Proof  of  mailing  or  inquiry. (a) 
( Title  of  cause.) 

New   Jersey,  ss. —  being  duly   sworn,  on   his   oath 

saith — That  he  is  the  (person  actually  entrusted  with  the  manage- 
ment and  conduct  of  this  suit  on  the  part  of  the)  [The  words 
in  parentheses  cannot  be  used  in  divorce  cases.     See  rule  59.] 

(a)  It  must  clearly  appear  that  the  the  order  of  publication  and  mailing 

notice  was  sent  to  the  defendant's  post-  a  copy  is  not  a  compliance  with  the 

office  address,  and  the  source  of  the  rule.     Tate  v.  Tate,  11   C.  E.  Gr.  56; 

complainant's    or    his    solicitor's   in-  and   see  Rogers  v.  Rogers,  supra.     A 

formation  must   be  stated;   that  "he  defect   in   the  affidavit  of  mailing  a 

was  credibly  informed  and  verily  be-  copy  of  the  notice  to  an  absent  de- 

lieves,"  is   not  sufficient.     Rogers   v.  fendant,  in  not  showing  that  the  place 

Rogers,  3  C.  E.  Gr.  445.     Publishing  to  which  it  was  directed  was  the  de- 


32  FORMS   OF   PLEADINGS. 

complainant ;  that  he  has,  in  good  faith,  made  diligent  and  careful 
inquiry  for  the  residence  and  post-office  address  of  ,  one 

of  the  defendants,  in  the  manner  required  by  the  rules  of  this 
court,*  and  that  he  is  credibly  informed,  in  such  manner  that  he 
believes  it  to  be  true,  that  the  said  resides  in  the  city 

of  ,  in  the  State  of  ,  and   that   his   post-office 

address  is  ;  and  this  deponent  further  says  that  he  did, 

on  the  day  of  last,  place  in  the  post-office  of  the 

city  of  ,  a  letter  directed  to  the  said  ,  at  , 

with  the  postage  prepaid,  containing  a  copy  of  the  notice  hereto 
annexed ;  {or,  after  the  *,  "  as  well  in  the  manner  directed  by 
the  rules  of  this  court  relating  thereto  as  in  every  other  way  by 
which  he  thought  it  probable  that  he  could  ascertain  such  resi- 
dence or  address,  and  that  he  has  not  been  able  to  discover, 
and  has  no  information  as  to  the  residence  or  post-office  address 
of  said  defendant.")  {Signature  ) 

{Jurat.) 

(See  note  below  as  to  form  of  affidavit  in  divorce  case.) 

Affidavit  of  publication  of  notice  to  appear,   &c. 

New  Jersey,  county,  ss. —  ,  of  full  age,  being  duly 

sworn  according  to  law,  on  his  oath  saith — That  a  notice,  of 
which  the  annexed  is  a  true  copy,  {annex  a  copy  of  the  notice,} 
was  published,  within  ten  days  from  the  date  thereof,  in  the 
,  a  public  newspaper,  printed  and  published  at  ,  in 

this  state,  and  continued  therein  for  four  weeks,  successively,  at 
least  once  in  each  week,  commencing  on  the  day  of  , 

18         .  {Signature.) 

Sworn  and  subscribed,  &c. 

fendant's   post-ofEce  address,  may  be  Bay  Co.,  1   Stew.  Eq.    192.     That   a 

remedied  by  supplying  the  proof  by  notice  sent  to  an  absent  defendant  was 

way    of    amendment      Dinsmore    v.  not  delivered  to  her  on  account  of  her 

Westcott,  10  C.  E.  Gr.  302.     It  is  no  illness,  cannot  affect  the  complainant, 

proof  that  the  efforts  of  a  solicitor  fell  Horner    v.    Corning,    Id.    258.        In 

short   of    "  diligent  and    careful    in-  the  case  of  a  foreign  corporation,  an 

quiry,"   that    he   omitted   to  send   a  affidavit  should  be  made  of  its  place 

notice  of  a  foreclosure  suit,  addressed  of  institution,  and   that  none   of  its 

to  a  defendant  at  a  place  designated  officers   or  directors   are  resident   in 

as  his  residence  in  a  deed  made  fifteen  this  state,  or  that  none  of  them  could 

years  before.     Leonard  v.  Neiv  York  be  found  within  this  state  to  be  served. 


ABSENT   DEFENDANTS,  &C.  33 

Order  for  supersedeas  under  Rev.,  "  Chancery," 
Sections  19-21,  as  amended  by  Pamph.  L.,  1893, 
chap.  CXIV. 

( Title  of  cause.) 

This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  ,  who  is  an   absent  defendant  in  the  above-stated 

cause,  and  it  appearing  that  the  said  absent  defendant  hath  caused 
his  appearance  to  be  entered  in  the  above-stated  cause  after  a 
decree  for  the  eale  of  the  mortgaged  premises  therein  described, 
and  before  the  sale  thereof;  and  the  Chancellor  being  of  the 
opinion  that  the  reasonable  costs  to  be  paid  by  said  defendant  to 
the  complainant  in  the  cause,  upon  such  appearance,  is  the  sum 
of  dollars : 

It  is  thereupon,  on  this  {date),  ordered  by  the  Chancellor,  that 
the  said  defendant,  ,  pay  to  the  clerk  of  this  court,  to  be 

by  him  paid  to  the  solicitor  of  the  complainant,  the  sum  of 
dollars  of  costs ;  and  that  when  such  payment  is  made,  a 
writ  of  supersedeas  do  issue  out  of  this  court,  directed  to  the 
sheriff  of  the  county  of  ,  commanding  him  to  stay  his 

proceedings  on  the  execution  in  this  cause,  for  the  sale  of  the 
said  mortgaged  premises,  until  the  further  order  of  this  court. 

And  it  is  further  ordered,  that  the  said  do  pay  to  the 

sheriff  of  the  county  of  ,  his  legal  charges  for  all  proceed- 

ings actually  taken  hitherto  under  the  said  writ  of  execution. 

And  it  is  further  ordered,  that  the  said  defendant,  ,  file 

his  answer  in  the  above-stated  cause  within  days  from  the 

date  of  this  order. 

with  process  of  snbpcena.     Upon  this,  ance  Co.,  1  Paige  587,  a  corporation  of 

an  order  for  publication  naay  be  taken  New  York,  which  was  broken  up,  and 

as  for  an  absent  defendant,  pursuant  no  proper  ofBcer  of  which  could  be 

to  the  statute.  Rev.,  "  Chancery,"  §  found,  a  similar  course  was  pursued. 
22.     In  Lawrence  v.  Greenwich  Insur- 


34 


FORMS   OF   PliEADINGS. 


FORM  OF  DECREE  PRO  CONFESSO. 

Where  some  defendants    have  been  served   with 
process,  and    an  order  of  publication  taken  as   to 

others.  («) 

( Title  of  cause.)  >      Decree  jpro  confesao. 


This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  that  process  of  subpoena 
for  the  defendants  to  appear  and  answer  the  complainant's  bill 
hath  been  duly  issued  and  returned  served  upon  the  defendants, 
,  and  that  due  notice  of  the  order  of  this  court,  made  on 
the  day  of  last  past,  directing  the  defendants,  , 

to  appear,  pkad,  answer  or  demur  to  the  complainant's  bill,  on 
or  before  the  day  of  then  next,  has  been  duly  pub- 

lished, and  also  mailed  to  the  said  defendants,  {or,  "  unsuccessful 


(a)  When  the  time  limited  for  the 
appearance  of  the  defendants  has  ex- 
pired, the  complainant's  solicitor  will 
file  the  proofs  of  publication  and 
mailing,  or  of  inquiry,  or  of  service  of 
the  notice,  (as  the  case  may  be,)  in 
the  clerk's  office,  and  then  immedi- 
ately enter  a  decree  pro  confesso 
against  such  of  them  [who  are  adults] 
as  have  not  filed  plea,  demurrer  or 
answer.  But  see  rule  27.  In  a  suit  for 
divorce  the  affidavit  shall  be  made 
by  the  complainant  or  his  solicitor, 
and  shall  fully  specify  the  inquiry 
made,  of  what  persons  and  in  what 
manner  it  was  made,  so  that  by  the 
facts  stated  in  such  affidavit  it  may 
appear  tiiat  the  inquiry  has  been  of 
the  character  intended  not  only  by 
the  letter,  but  also  by  the  spirit  of 
rule  59.  Rule  60.  The  Chancellor 
will  sign  the  decree  upon  being 
satisfied  that  the  process  of  subpoena 
has  been  served  upon  the  resident 
adult  defendants,  and  the  notice  pub- 
lished and  mailed,  &c.,  or  served  as 
required  by  rules  57,  58  and  59. 


A  decree  pro  confesso  may  be  taken 
at  any  time  after  the  time  limited 
for  the  defendant  to  plead,  answer 
or  demur,  has  expired.  It  may  be 
taken  without  notice  and  as  of  course, 
unless  it  appear  that  some  prejudice 
will  thereby  accrue  to  the  adverse 
party.  Oakley  v.  0' Neil,  1  Or.  Ck. 
287 ;  see  Neshit  v.  St.  Patricias  Church, 
1  Stock.  76.  A  decree  pro  confesso, 
signed  after  the  time  for  answering 
has  expired,  is  regular,  though  an 
order  for  further  time  to  answer  be 
signed  and  filed  on  the  same  day  with 
the  signing  of  the  decree.  Emery  v. 
Downing,  2  Beas.  59.  A  defendant 
coming  in  without  unnecessary  delay, 
by  motion  or  petition,  after  a  decree 
pro  confesso  regularly  taken,  will,  upon 
any  reasonable  ground  of  indulgence, 
be  permitted  to  answer  upon  payment 
of  costs.  Ibid.  But  if  it  appear,  upon 
an  examination  of  the  answer,  that  it 
contains  no  valid  ground  of  defence, 
the  decree  will  not  be  opened.  Ibid. 
In  an  ordinary  foreclosure  case,  after 
a  decree  pro  confesso,  the  mortgage 


OF   APPEARANCE. 


35 


inquiry  made  for  the  residence  of  said  defendants,")  in  the  man- 
ner and  as  in  the  said  order  directed  and  prescribed ;  and  that 
the  said  defendants  have  not,  nor  have  any  or  either  of  them, 
appeared  and  pleaded,  answered  or  demurred  to  the  said  bill 
within  the  time  limited  by  law  and  the  said  order,  or  at  any  other 
time,  but  that  they  have  wholly  failed  and  neglected  so  to  do : 
It  is  thereupon,  on  this  day  of  ,  in  the  year,  &c., 

on  motion,  &c.,  ordered  and  decreed  that  the  complainant's  bill 
be,  and  the  same  is  hereby  taken  as  confessed  against  the  said 
defendants,  (naming  them,)  to  the  end  that  such  decree  may  be 
made  against  them  as  the  Chancellor  shall  think  equitable 
and  just. 


FORM   OF   APPEARANCE.(a) 

{Title  of  cause.) 

Appearance  entered  for  ,  defendant  in  ^ 

the  above-stated  cause,  by  V  Appearance. 

Signature  of  Sol.  ) 


itself  is  sufficient  evidence ;  but  in 
other  cases  there  must  be  an  order  to 
take  proofs.  Bowers  v.  Bowers,  July, 
1829.  There  have  been  instances,  how- 
ever, in  which,  in  cases  of  creditor's 
bills  to  set  aside  conveyances  for  fraud, 
a  final  decree  has  been  made  by  default 
after  failure  to  answer  within  the  time 
limited  by  law  and  service  of  an  order 
made  after  such  failure,  on  the  de- 
fendants charged  with  the  fraud  and 
to  be  affected  by  the  decree,  directing 
them  to  answer  the  bill  within  a  cer- 
tain number  of  days,  and  declaring 
that  in  default  of  such  answer,  relief 
(specifying  it)  prayed  by  the  bill 
would  be  granted,  and  a  final  de- 
cree taken  against  them  accordingly. 
The  complainant  is  entitled  to  a  de- 
cree pro  confesso  after  the  expiration 
of  the  time  for  answering,  though  an 
answer  be  on  file  at  the  time  of  his 


application  for  the  decree.  The  de- 
fendant, however,  may  have  relief  on 
reasonable  ground  shown,  upon  pay- 
ment of  costs.  See  Robertson  v.  Miller, 
2  Or.  Ch.  452 ;  Williams  v.  Thompson, 
2  Bro.  a  C.  280.  Where  complain- 
ant's proceedings  are  strictly  regular, 
the  order  upon  opening  the  decree,  is 
granted  upon  the  payment  of  costs  ; 
under  certain  circumstances,  the  costs 
of  the  decree  will  be  ordered  to  abide 
the  event  of  the  suit.  Oram  v.  Denni- 
son,  2  Beas.  438.  After  a  decree  pro 
confesso,  order  of  reference  and  report 
of  master,  the  decree  will  be  opened 
and  the  defendant  let  in  to  answer,  if 
the  equity  of  the  case  requires  such 
relaxation  of  the  rules  of  the  court. 
Williamson  v.  Sykes,  2  Beas.  182. 

(a)  When  a  party  seeks  to  avoid  a 
decree  rendered  in  a  cause  in  which 
an  appearance  was  entered  for  him  by 


36 


FORMS   OF   PLEADINGS. 


OF  PROCEEDINGS  TO  COMPEL  AN  ANSWER. 


Common  order  to  answer.(a) 

{Title  of  cause.) 

This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing*  that  process  of  sub- 
pcena  to  appear  and  answer,  has  been  duly  issued  and  returned 
served  upon  the  defendant,  ,  and  that  he  has  not  filed  any 

plea,  demurrer  or  answer  to  the  complainant's  bill  within  the 
time  limited  by  law,  or  at  any  other  time :  ("  and  it  further 
appearing  that  the  complainant  has,  for  more  than  four  months, 
neglected  to  take  a  decree  pro  confesso  against  the  defendant," 
if  under  rule  27.)     It  is,  on  this  day  of  ,  in  the 

year,  &c.,  on  motion,  &c.,  ordered,  that  the  said  defendant  file 
his  answer  to  said  bill  within  days  after  service  upon  him 

[or  "  his  solicitor  ")  of  a  copy  of  this  order,  or  that  said  bill  be 
taken  as  confessed  against  him ;  (or,  "  that  an  attachment  may 
issue,"  as  the  case  may  be.) 


a  solicitor,  on  the  ground  that  the 
court  had  no  jurisdiction  over  his 
person,  he  must  show,  affirmatively, 
that  the  solicitor  had  no  authority 
to  enter  his  appearance.  Gifford  v. 
Thome,  1  Stock.  703.  An  attorney 
who  enters  an  appearance  without 
authority  is  answerable  in  damages 
for  the  injury  thereby  occasioned. 
Field  V.  Gibhs,  Pet.  C.  C.  155.  If  it 
appear  by  record  that  the  defendant 
appeared  by  attorney,  he  may  dis- 
prove the  authority  of  the  attorney. 
Gifford  V.  Thome,  1  Slock.  703. 
Where  subpoena  was  not  served  by  an 
oflScer,  a  request  written  on  the  back 
of  the  subpoena  to  the  clerk  to  enter  an 
appearance  for  the  defendant  would 
have  been  sufficient.  Henderson  v. 
Hopper,  April,  1827.  The  issuing  of 
a  subpcena  before  bill  filed  is  waived 
by  an  appearance.  Crouell  v.  Botsford, 
1  C.  E.  Gr.  458.     In   a   case  where 


supplemental  bill  was  filed,  without 
leave  first  had,  and  no  objection  was 
taken  to  the  regularity  of  such  pro- 
ceedings, objection  was  considered  as 
waived  by  a  voluntary  appearance 
and  demurrer  by  the  defendants. 
Allen  V.  Taylor,  2  Gr.  Ch.  435.  For 
eifect  of  appearance,  &c.,  in  foreclosure, 
see  Rev.,  "  Chancery,''  §  73 ;?  75  is 
repealed ;  and  Horner  v.  Corning,  1 
Slew.  Eq.  254. 

(a)  Get  a  certified  copy  of  this  order 
from  the  clerk's  office,  and  serve  on 
the  defendant,  (or  upon  his  solicitor, 
if  he  has  appeared  by  solicitor,)  and 
file  proof  of  such  service.  Upon  the 
expiration  of  the  time  from  the  day  of 
service  fixed  in  the  order,  the  com- 
plainant will  be  entitled  to  a  decree 
pro  confesso,  or  to  proceed  to  compel  an 
answer.  This  order  is  necessary  where 
the  complainant  has  omitted  to  take 
a  decree  pro  confesso  against  a  defend- 


OF   PROCEEDINGS   TO   COMPEL   ANSWER. 


37 


Order  to  answer,  or  that  an  attachment  issue. (a) 

(Title  of  cause.) 

{In  form  as  above  to  *,  then,  "  that  a  copy  of  the  order  to 
answer  heretofore  made  in  this  cause  has  been  duly  served  upon 
the  defendant;  and  that  he  has  not  filed  his  answer  to  the  bill  of 
complaint,  as  required  by  said  order ;  and  it  being  alleged  that 
a  discovery,  on  oath,  from  the  said  defendant  is  necessary:  It 
is,  on  this  day  of  ,  &c.,  on  motion,  &c.,  ordered, 

that  the  said  put  in  his  answer  to  the  bill  of  complaint 

filed  in  this  cause,  within  days  after  service  upon  him  of  a 

copy  of  this  order,  or  that  in  default  thereof  an  attachment  issue 
against  him.") 


ant  for  four  months  after  the  time 
when  he  was  entitled  to  such  decree. 
Mule  27.  Those  defendants  only  are 
entitled  to  notice  of  the  order  who  are 
in  the  state  and  have  been  served 
with  subpoena.  In  the  case  of  de- 
fendants who  have  removed  from  the 
state  since  service  of  subpoena  upon 
them,  proof  of  their  non-residence 
should  be  filed  in  order  to  render  ser- 
vice upon  them  unnecessary. 

(a)  Although,  since  the  passage  of 
the  statute  permitting  the  bill  to  be 
taken  pro  confesso  against  non-resident, 
or  absconding,  concealed  and  contu- 
macious defendants,  the  process  for 
compelling  an  answer  has  fallen  into 
disuse,  yet  there  may  be  cases  where 
the  complainant  cannot  dispense  with 
an  answer,  and  the  right  to  take  a 
decree  pro  confesso  will  be  inadequate, 
as  in  the  case  of  certain  bills  for  dis- 
covery. The  practice  of  compelling 
an  answer  is  recognized  by  the  Court 
of  Chancery.  Giveans  v.  McMurtry, 
ICE  Gr.  475.  Consolidated  Electric 
Storage  Co.  v.  Atlantic  Trust  Co.,  5 
Dick.  Ch.  Rep.  93.    The  complainant, 


by  amending  his  bill,  waives  his  pro- 
cess for  contempt,  but  he  will  be 
allowed,  upon  motion  or  petition,  and 
on  giving  personal  notice  to  the  de- 
fendant, to  amend  his  bill  without  its 
operating  as  a  discharge  of  such  con- 
tempt. If  the  complainant  accepts 
the  defendant's  answer  or  replies,  or 
moves  upon  it,  which  implies  accept- 
ance, he  cannot  use  the  process  for 
contempt  for  the  purpose  of  getting 
costs.  The  same  proceedings  are  also 
had  to  compel  the  several  answers  of 
a  married  woman,  {Bunyan  v.  Morti- 
mer,  6  Mad.  *278,)  an  infant,  a  person 

of   unsound    mind,    {Lloyd    v.   , 

Dick.  460,)  and  a  corporation.  Pro- 
cess, for  want  of  an  answer,  may  go 
against  both  husband  and  wife,  if  an 
order  to  answer  separately  has  not 
been  obtained.  In  the  case  of  an 
infant  or  lunatic  defendant,  the  pro- 
cess to  compel  an  answer  goes  against 
the  guardian  ad  litem.  The  answer  of 
a  corporation  is  enforced  by  process  of 
distringas  and  sequestration.  1  Barb. 
Ch.  Pr.,  p.  88. 


38 


FORMS   OF   PLEADIJSGS. 


Order  for  attachment  for  not  answering.(a) 
{Title  of  cause.) 

{After  *  above,  "  that  by  an  order  heretofore  made  in  this 
cause,  the  defendant,  ,  was  required  to  put  in  his  answer 

to  the  bill  of  complaint  therein  within  days  after  service 

upon  him  of  a  copy  of  said  order,  or  that  an  attachment  issue ; 
and  it  further  appearing  by  affidavit  that  a  copy  of  said  order 
was  served  on  the  said  defendant  more  than  days  since, 

and  that  the  said  has  not  put  in  his  answer  to  the  bill  in 

this  cause  as  required  by  the  said  order :  It  is,  &c.,  ordered  that 
an  attachment  issue  against  the  said  for  not  answering.") 

Writ  of  attachment. (6)     New  Jersey,  to  wit — The  State 
of  New  Jersey  to  the  sheriff  of  the  county  of  — Greeting : 

We  command  you  to  attach  ,  so  as  to  have  him  before 

[l.  s.]    our  Chancellor  in  our  Court  of  Chancery  on  the 

day  of  next,  at  Trenton,  then  and  there  to  answer. 


(a)  The  court  may,  in  its  discretion, 
order  an  attachment  to  issue  in  the 
first  instance;  or  will  grant  first  a 
rule  to  show  cause,  as  may  seem  ad- 
visable. 

(6)  There  must  be  fifteen  days  ex- 
clusive between  the  teste  and  return  of 
the  writ,  unless  the  court  otherwise 
order,  and  it  should  be  made  return- 
able on  a  regular  motion-day.  It 
should  be  directed  and  delivered  to 
the  sheriff"  of  the  county  where  de- 
fendant resides.  All  the  defendants 
in  attachment  in  the  same  county 
must  be  inserted  in  one  writ.  Rule 
133.  The  sheriff"  has  until  the  time 
when  the  writ  is  returnable  to  make 
his  return.  Two  or  more  attachments 
may  be  issued  at  the  same  time  into 
different  counties,  but  only  one  should 
be  executed,  otherwise  the  party 
would  be  liable  to  an  action.  An 
attachment  can  be  issued  only  by  and 
against  parties  to  a  suit.  A  person 
not   a   party  on   record    can   neither 


issue  an  attachment  nor  can  one  be 
issued  against  him.  1  Smith's  Ch. 
Pr.  123.  If  the  writ  is  served  and 
the  defendant  gives  bail,  the  return 
is,  "I  have  attached  and  let  the  de- 
fendant at  large  on  bail,  according  to 
the  bond  herewith  returned, 
sheriff."  The  bond  is  to  be  returned 
with  the  attachment,  and  both  are 
filed.  If  the  defendant,  on  being 
arrested,  neglects  or  refuses  to  give 
bail,  the  return  is,  "By  virtue  of  the 
within  writ,  I  have  attached  the  de- 
fendant, ,  and  taken  his  body, 
and  for  want  of  bail  have  him  now 
here  in  custody  before  the  court " 
When  the  attachment  is  received  by 
the  sheriff  after  the  retui"n-day,  the 
return  is,  ''I  did  not  receive  the 
within  writ  in  time  to  arrest  the  de- 
fendant thereon  and  bring  him  before 
the  court  on  the  return-day  thereof." 
If  the  defendant  cannot  be  found,  the 
return  is,  "  Not  found  "  The  return 
is  endorsed  on  the  writ  and  signed  by 


OF   PROCEEDINGS   TO   COMPEL   ANSWER. 


39 


as  well  touching  the  contempt  which  he,  as  is  alleged,  hath 
committed  against  us,  as  also  such  other  matters  as  shall  then 
and  there  be  laid  to  his  charge ;  and  further,  to  perform  and 
abide  such  order  as  our  said  court  shall  make  in  this  behalf,  and 
hereof  fail  not.     And  have  you  then  there  this  writ. 

Witness  his  Honor,  ,  Chancellor,  at  Trenton  afore- 

said, the  day  of  ,  in  the  year  one  thousand  eight 

hundred  and  .  Clerh. 

Solicitor. 

Alias  attachment.  {Same  as  above,  except  that  after  the 
words  " tve  command  you"  you  insert  " as  you  were  before  com- 
manded.") 

Pluries  attachment. («)  {After  the  words  "we  command 
you,"  add  "  as  you  were  oftentimes  before  commanded.") 

Bond  on  attachment.(6)  Know  all  men  by  these  presents, 
that  we,  ,  of,  &c.,  and  ,  of,  &c.,  are  held  and  firmly 

bound  unto  ,  (the  complainant,)  ,  and  his  assigns. 


the  sheriff.  If  the  sheriff  returns 
"not  found,"  the  complainant  may 
have  as  many  attachments  as  he  is 
advised  until  he  succeeds  in  taking 
the  defendant.  If  the  sheriff  or  other 
officer  does  not  make  return  of  the 
writ,  as  commanded,  he  will  be  ad- 
judged to  be  in  contempt  Rev., 
"  Chancery,"  §  69. 

(a)  Attachments  with  proclamation 
and  commission  of  rebellion  are  abol- 
ished by  statute  as  unnecessary.  Rev., 
^'Chancery,"  §  106.  To  enforce  obedi- 
ence to  the  process,  rules  and  orders 
of  the  court,  where  any  person  shall 
be  in  contempt,  he  shall,  before  he  be 
released  or  discharged  therefrom,  pay 
to  the  clerk,  for  the  use  of  the  state,  a 
sum  not  exceeding  fifty  dollars,  as  a 
fine  for  the  contempt ;  and  also  stand 
committed  until  the  process,  rule  or 
order  is  obeyed,  and  until  the  fine 
and  costs  are  fully  paid.  Rev., 
''Chancery,"  ^  103. 


{b)  The  bond  to  be  given  by  the  de- 
fendant in  attachment  shall  be  in  the 
penal  sum  of  five  hundred  dollars, 
with  one  sufficient  surety,  conditioned 
for  his  appearance  on  the  return-day, 
&c.  Rule  134.  On  the  return-day,  he 
must  enter  his  appearance  with  the 
clerk,  {see  "Form  of  Appearance," 
ante,)  and  give  notice  thereof  to  the 
adverse  party.  Rule  135.  The  com- 
plainant must,  within  eight  days  there- 
after, enter  a  rule  in  the  clerk's  office 
for  the  defendant's  examination  upon 
interrogatories  touching  his  alleged 
contempt,  before  a  master.  A  copy  of 
the  rule  and  interrogatories  must  be 
served  on  the  defendant.  Rale  136. 
The  defendant  has  four  days  after  the 
appearance-day  before  the  master  to 
put  in  his  examination  in  writing; 
and  the  master  shall,  if  required  by 
complainant,  report,  with  the  inter- 
rogatories and  examination?,  whether, 
in  his  opinion,  the  examination  is  full 


40  FORMS   OF   PLEADINGS. 

in  the  penal  sum  of  five  hundred  dollars,  {or  other  special  sum 
stated  in  the  writ,)  to  be  paid  to  the  said  ,  (complainant,) 

as   aforesaid,  or   his   assigns.     For   which   payment   well   and 
truly   to   be   made,  we   bind   ourselves  jointly  and   severally, 
our  and  each  of  our  heirs,  executors  and  administrators  firmly 
by  these  presents.     Sealed  with  our  seals  and  dated  the 
day  of  ,  eighteen  hundred  and 

Whereas  the  above-named  has  been  arrested  upon  an 

attachment  issued  out  of  and  under  the  seal  of  the  Court  of 
Chancery  of  the  State  of  New  Jersey,  (for  not  answering  a  bill 
of  complaint  filed  in  said  court,  or  as  the  case  may  be,)  in  a 
cause  wherein  is  complainant,  and  said  {loith  others) 

is   defendant,  and   is  now  in   the  custody  of  the  said  , 

sheriflP  as  aforesaid.  Now,  the  condition  of  this  obligation  is, 
that  if  the  above-bounden  shall  appear  before  the  Chan- 

cellor of  said  state,  in  the  Court  of  Chancery,  on  the  day 

of  next,  (or  "instant,")  at   Trenton,  to  answer  to  the 

matter  alleged  against  him,  and  to  perform  and  abide  the  order 
of  the  said  court  thereupon,  and  not  depart  thence  without  leave 
of  the  court,  then  this  obligation  to  be  void,  otherwise  to  remain 
in  full  force  and  virtue.  [l.  s.] 

Sealed  and  delivered  in  presence  of —  [l.  s.] 

and  satisfactory  or  not.  Eule  137.  the  non  performance  of  a  final  decree 
In  a  case  where  a  defendant  had  for  payment  of  money,  and  the  con- 
given  bail,  but  still  neglected  to  temner  appeared  on  an  order  to  show 
answer,  it  was  held  that  the  plaintiff  cause  why, an  attachment  should  not 
might  proceed  both  with  the  contempt  issue  against  him,  and  declared  his 
and  also  against  the  defendant  and  the  readiness  to  obey  the  decree,  and 
sureties  on  the  bond.  Beddall  v.  Page,  answer  for  his  contempt  as  the  court 
2  Sim.  224.  If  the  defendant  when  should  direct,  he  was  heard  on  appli- 
taken  refuses  or  neglects  to  enter  his  cation  to  open  the  decree  and  to  be  let 
appearance,  the  court  may  order  the  in  on  ground  of  surprise  Freese  v. 
clerk  to  enter  an  appearance  for  him.  Swayze,  supra.  Query.  Whether,  when 
The  general  rule  is  that  a  contemner,  the  defendant  is  brought  in  upon  the 
who  is  in  contempt,  is  never  to  be  attachment  and  swears  to  his  inability 
heard  by  motion  or  otherwise,  until  to  pay  costs,  he  will  be  discharged, 
he  has  cleared  his  contempt  and  paid  Den  v.  Hendrickson,  3  Harr.  366  ;  see 
the  costs.  Freese  \ .  Swayze,  \1  G.  E.  Rev.,  ^Insolvent  Debtors,"  H  1,  2; 
Gr.  437 ;  Johnson  v.  Pinney,  1  Paige  Morgan  v.  Morgan,  1  Stew.  Eq.  23. 
646.     But  where  the  contempt  was 


OF  PROCEEDINGS  TO  COMPEL  ANSWER.         41 

Order  for  alias  attachment.  {In  common  form  to  *,  then, 
•*'  that  the  sheriff  of  the  county  of  has  returned  the  writ 

of  attachment  issued  in  this  cause  against  the  defendant,  , 

'  taken '  together  with  the  bond  taken  by  him  upon  the  arrest  of 
said  defendant ;  and  the  said  defendant  having  failed  to  appear : 
It  is,  on  this,  &c.,  ordered,  thatf  an  alias  attachment  issue 
against  the  said  ,  directed  to  the  sheriff  of  the  county  of 

,  returnable  to  the  day  of  next,  or,  "  imme- 

diately.") 

Order  for  leave  to  prosecute  bond  at  law.  {After 
t,  "  the  said  bond  being  forfeited,  may  be  prosecuted  by  the 
complainant ;  and  that  the  same  may  be  delivered  by  the  clerk 
of  this  court  to  the  complainant,  or  his  solicitor  for  that  pur- 
pose.") 

Order  for  defendant  to  answer  within  a  specified 
time,  he   having    appeared  and    admitted    his  con- 
tempt.    {In  common  J  arm  to  *,  and  add,  "  that  the  defendant 
,  being  in  contempt  for  not  answering  to  the  bill  in  this 
cause,  and  {stating  the  facts,)  and  the  said  now  being,  by 

virtue  of  such  attachment,  personally  before  the  court,  and  con- 
senting to  put  in  his  answer  in  this  suit,  and  pay  the  costs  of 
his  contempt :    It  is,  &c.,  ordered,  that  the  said  do,  forth- 

with, cause  his  appearance  to  be  entered  with  the  clerk  of  this 
<;ourt,  and  pay  the  costs  of  these  proceedings,  ("  and  a  fine  of 
dollars  to  the  use  of  this  state,")  and  that  in  default 
thereof,  the  complainant  may  apply  to  this  court  for  such  further 
order  as  may  be  proper  in  the  premises.  And  it  is  further 
ordered,  that   the  bond   executed   by  the  said  and   his 

surety  be  continued  over,  and  that  the  said  do  attend  this 

court  from  day  to  day,  until  the  further  order  thereof.") 

Order  for  commitment.  {As  in  common  form  to  *,  "that 
an  order  was  heretofore  entered  in  this  cause,  requiring  the 
defendant,  ,  to  file  his  answer,  and  to  pay  the  costs  and  a 

fine  occasioned  by  his  contempt ;  and  it  further  appearing  that 
said  costs  and  fine  have  not  been  paid ;  and  that  he  has  not 
filed  his  said  answer  as  required :    It  is,  on  this,  &c.,  ordered. 


42  FORMS   OF   PLEADINGS. 

that  the  said  is  guilty  of  the  misconduct  alleged  against 

him ;  and  that  such  misconduct  was  calculated  to,  and  did 
actually  defeat,  impair,  impede  or  prejudice  the  rights  or  reme- 
dies of  the  complainant  in  this  cause;  and  it  is  further  ordered ,^ 
that  the  said  stand  committed  to  the  common  jail  of  the 

county  of  ,  there  to  remain,  charged  upon  this  contempt, 

until  he  shall  have  paid  the  costs  of  such  contempt,  to  be  taxed, 
and  a  fine  of  dollars,  for  the  use  of  the  state,  unless  the 

court  shall  see  fit  sooner  to  discharge  him ;  and  it  is  further 
ordered,  that  a  warrant  issue  for  that  purpose." 

Warrant  of  commitment  for  contempt  in  not 
answering.  New  Jersey,  to  wit — The  State  of  New  Jersey 
to  the  sheriff  of  the  county  of  — Greeting : 

Whereas,  by  a  certain  order  made  in  our  Court  of  Chancery, 
[l.  s.]  before  our  Chancellor,  at  Trenton,  bearing  date  on  the 
day  of  ,  &c.,  in  a  certain  cause  therein  depending 

between  ,  complainant,  and  {with  others,)  defendant, 

it  was  ordered,  that  said  be  committed  to  the  common 

jail  of  the  county  of  ,  there  to  remain,  charged  with  the 

contempt  mentioned  in  said  order,  until  he  should  {insert  the 
direction  contained  in  the  order,)  and  that  a  warrant  issue  for 
that  purpose.  Therefore,  we  command  you  that  you  take  the 
body  of  the  said  ,  and  him  safely  and  closely  keep  in  your 

custody  in  the  common  jail  of  the  county  of  until  he  shall 

have  {recite  the  condition  of  the  order,)  together  with  the  costs  of 
this  writ,  or  until  our  said  court  shall  make  order  to  the  con- 
trary. And  you  are  to  make  return  to  our  said  Chancellor,  in 
our  said  Court  of  Chancery,  at  the  state-house,  at  Trenton,  on 
the  day  of  next,  under  your  hand,  of  your  doings 

in  the  premises,  together  with  this  writ. 

Witness,  &c. 

Sheriflf's    return.      I,  ,  sheriff  of  the  county   of 

,  hereby  certify  and  "return,  that  under  and  by  virtue 
of  the  within  writ  to  me  directed,  I  have  taken  the  within- 
named  into  my  custody,  and  do  still  keep  him  in  my  cus- 
tody in  the  common  jail  of  said  county,  as  by  the  within  writ  I 
am  commanded. 


OP   PROCEEDINGS  TO   COMPEL   ANSWER.  43 

Or,  if  the  writ  is  served  and  the  defendant  gives  bail,  "  I 
have  attached  and  let  the  defendant  at  large  on  bail  according  to 
the  bond  herewith  returned." 

Or,  if  the  defendant  cannot  be  found  the  return  is,  "  Not 
found." 

Or,  if  the  defendant  was  already  in  custody  the  return  is,  "  I 
have  arrested  the  defendant  on  the  within  writ,  previous  to 
serving  which  he  was  in  my  custody  by  virtue  of  a  writ" 
[stating  the  nature  of  the  writ.) 

(Signature.) 
Dated, 

Order  for  a  sequestration.(a)  {In  common  form  to  *, 
"  that  the  defendant  is  in  contempt  for  not  answering  to  the  bill 
of  complaint  in  this  cause,  and  that  he  has  failed  to  appear 
and  answer  to  his  said  contempt  as  required :  It  is,  on  this, 
&c,,  ordered,  that  a  writ  of  sequestration  do  issue  against  the 
said  ,  directed  to  the  sheriff  of  the  county  of  ,  {or 

as  the  case  may  be,)  directing  him  to  immediately  sequester  the 
said  defendant's  personal  estate,  and  the  rents,  issues  and  profits 
of  his  real  estate,  until  the  said  defendant  shall  answer  to  the 
bill  of  complaint  in  this  cause,  clear  his  contempt,  and  until  the 
further  order  of  this  court.")  {Order  for  injunction  also,  if 
required.) 

"Writ  of  sequestration.  New  Jersey,  to  wit— The  State  of 
New  Jersey  to  the  sheriff  of  the  county  of  — Greeting  : 

Whereas,  on  the  day  of  ,  in  the  year  of  our  Lord 

[l.  s.]    one  thousand  eight  hundred  and  ,  by  a  certain 

order,  made  in  our  Court  of  Chancery  before  our  Chan- 

(a)  Where  the  party,  after   being  It  has  been  held  that  a  party  in 

committed,  perseveres  in  his  refusal  contempt   for   non-payment   of   costs 

to  do  the  act  required,  a  sequestration  may  be  relieved   from   his  contempt 

may    be    issued,    and     his    servants,  by  obtaining  his  discharge  under  the 

agents,  &c.,  may  be  prohibited  from  insolvent  laws.     Lewis  v.  Conover,  N. 

delivering    his    property   to   him   or  J.    Chan.,   1870;    and  see  People   v. 

applying   it   to   his   use,   on   pain   of  Bennett,    4    Paige    282;    Patrick    v. 

contempt.     People  v.  Rogers,  2  Paige  Warner,  Id.  397  ;   State  v.  Gulick, 

103.  Harr.  437. 


44  FOEMS   OF   PLEADINGS. 

cellor,  at  Trenton,  in  a  certain  cause  therein  depending,  wherein 
is  complainant,  and  is  defendant,  it  was  ordered 

and  adjudged  that  process  do  issue  from  and  out  of  this  court, 
directed  to  the  sheriff  of  the  county  of  ,  for  the  immediate 

sequestration  of  the  personal  estate  of  the  said  ,  and  of  the 

rents  and  profits  of  his  real  estate,  and  that  the  said  sheriff  keep 
the  same  under  sequestration  in  his  hands  until  the  said  defend- 
ant, ,  shall  have  fully  answered  the  bill  of  complaint  of  the 
said  complainant  in  said  cause,  and  until  the  further  order  of 
said  court.  Therefore  you  are  hereby  commanded,  that  you  do 
forthwith  enter  upon  all  the  messuages,  lands,  tenements  and 
real  estate  whatsoever  of  the  said  ,  in  your  county,  and 
that  you  do  take,  collect,  recover  and  sequester  into  your  hands, 
not  only  all  the  rents  and  profits  of  the  said  messuages,  lands, 
tenements  and  real  estate,  but  also  all  his  goods,  chattels  and 
personal  estate  whatsoever,  and  that  you  detain  and  keep  the 
same  under  sequestration  in  your  hands,  and  pay  the  same  in 
such  manner  as  the  said  court  shall  appoint,  until  the  said 
shall  fully  answer  the  said  complainant's  bill,  clear  his  contempt, 
and  until  the  further  order  of  this  court ;  and  you  are  to  make 
return'  of  your  proceedings  by  virtue  of  this  writ  to  our  Court 
of  Chancery,  on  the  Tuesday  of  next,  together  with 
this  writ. 

Witness  his  Honor,  ,  our  Chancellor,  at  Trenton, 

this  day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and 

Clerk. 
Solicitor. 


CONTEMPT   FOR   VIOLATING   INJUNCTION.  45 

FORMS    OF    PHOCEEDINGS    FOR    CONTEMPT    IN 
VIOLATING  AN   INJUNCTION. 

Order  to  show  cause  why  an  attachment  should 
not  issue  for  violation  of  an  injunction. (a) 

{Title  of  cause.) 
Upon  opening  the  matter  to  the  Chancellor,  by  ,  of 

counsel  with  the  complainant,  and  upon  reading  the  affidavit  of 
,  setting  forth  that  the  defendant,  ,  has  been  guilty 

of  a  violation  of  the  injunction  heretofore  issued  against  him  in 
this  cause,  and  on  motion  as  aforesaid:  It  is,  on  this  {date)^ 
ordered,  that  the  said  do  show  cause  before  the  Chan- 

cellor, on  {date),  at  {as  the  case  may  be),  at  the  hour  of  ten 
o'clock  in  the  forenoon,  why  an  attachment  for  contempt  should 
not  issue  against  him,  and  he  be  punished  for  his  alleged  mis- 
conduct in  violating  the  said  injunction.  And  it  is  further 
ordered,  that  copies  of  the  affidavits  and  other  papers  on  which 
this  motion  is  founded  be  served  on  the  said  defendant  per- 
sonally within  days  from  the  date  of  this  order. 

Order  for  attachment. (6) 

{Title  of  cause.) 
It  appearing  to  the  Chancellor  that  by  an  order  heretofore 
made  in  this  cause,  it  was  ordered  that  the  defendant,  , 

show  cause,  &c.,  {reciting  the  substance  of  the  order,)  *  and  that 

(a)  An   order  to   show   cause,  ad-  If  the  party  is  already  in  prison, 

vised  by  a  Vice  Chancellor,  must  be  the  writ  must  nevertheless  be  directed 

actually  signed  by  the  Chancellor  be-  to  the  sheriff,  who  will  lodge  it  with 

fore    further     proceedings    are     had  the   keeper   or   jailer   as   a    detainer 

thereupon,   and    the   affidavits   upon  against  such   party.      And   it   seems 

which   it   is  founded  are  to  be  filed  that  in  such  case  the  party  suing  out 

with  the  clerk.     Dowden  v.  Junker,  3  the  writ  may  apply  for  a  habeas  corpus 

Dick.  Ch.  Rep.  554.  for    the    production    of    the    person 

See,  as  to  contempts  committed  in  against    whom   the   writ    was   issued 

the  presence  of  a  court  held  by  a  Vice  before  the  court   awarding   the  writ. 

Chancellor,  Pamph.  L.,  1892,  p.  291.  All  attachments  for  contempt  shall 

(6)  An   attachment   should   be  di-  have  at   least   fifteen   days  exclusive 

rected  to  the  sheriff  or  other  proper  between  the  teste  and   return,  unless 

officer    of    the    county   wherein    the  the  Chancellor,  upon  motion  or  peti- 

party  against  whom  the  writ  is  issued  tion,  shall  otherwise  order.     And  all 

is  likely  to  be  found.  persons    in    contempt    in    the   same 


46 


FORMS  OF   PLEADINGS. 


he  has  not  appeared  or  shown  cause  as  by  the  said  order  he  was 
directed  to  do,  although  a  copy  of  said  order  was  duly  served 
upon  him  as  therein  directed,  and  on  application,  &c. 

Or,  if  defendant  appeared  and  showed  cause,  &g.,  after  *,  and 
on  motion  of  ,  of  counsel  with  complainant,  and  on  hear- 

ing ,  of  counsel  for  said  defendant :   It  is,  on  (date,)  ad- 

judged that  the  said  is  guilty  of  contempt  of  this  court  in 

(as  the  case  may  be,)  contrary  to  the  order  and  injunction  of  this 
court,  and  it  is  ordered  that  an  attachment  as  for  a  contempt  be 
issued  against  the  said  ,  returnable  the  (a  regular  motion- 

day,)  at  {as  the  case  may  be.) 

(For  form  of  writ,  see  page  38.) 

Appearance  of  defendant  to  the  attachment. (a) 

{Title  of  cause.) 
Appearance  entered  for  ,  defendant,  on  the  attachment 

issued  against  him  in  the  above-stated  cause  by 

{Signature  of  solicitor.) 


cause  and  in  the  same  county  shall  be 
included  in  one  writ  of  attachment 
Rule  133. 

When  an  attachment  for  a  contempt 
shall  be  served,  the  defendant  shall  be 
retained  in  custody  thereon,  to  answer 
the  exigency  of  the  writ,  until  the 
return-day  thereof,  unless  he  shall, 
with  one  sufficient  surety  at  least, 
give  bond  in  the  penal  sum  of  five 
hundred  dollars  to  the  complainant, 
conditioned  for  his  appearance  on  the 
return-day  of  the  attachment,  accord- 
ing to  the  command  of  such  writ,  and 
that  he  will  not  depart  thence  with- 
out leave  of  the  court.     Bule  134. 

The  form  of  the  writ  is  the  same  in 
all  cases,  but  by  the  English  practice, 
from  which  the  form  of  our  writ  is 
borrowed,  it  was  necessary  that  the 
writ  should  bear  an  endorsement 
stating  the  particular  nature  of  the 
■contempt  in  respect  of  which  it  is 
issued.     It    seems    that    either    this 


ought  to  be  done  or  that  the  order 
upon  which  the  writ  was  issued  should 
be  served  with  the  writ. 

The  writ  must  be  tested  on  the  day 
on  which  it  is  issued  and  sealed  by 
the  clerk,  and  the  amount  in  which 
the  party  is  to  give  bail  is  to  be 
endorsed  on  the  writ,  unless  the 
sheriff  is  to  take  bail  in  the  sum 
required  by  the  rules.  If  any  amount 
of  bail  in  excess  of  this  is  required,  it 
must  be  ordered  by  the  Chancellor 
and  endorsed  on  the  writ. 

An  arrest  on  a  Sunday  is  absolutely 
void.  No  arrest  can  take  place  under 
an  attachment  after  the  return-day  of 
the  writ. 

(a)  When  a  defendant  in  attach- 
ment shall  have  given  bond  for  his 
appearance,  he  shall  enter  his  appear- 
4  ance  with  the  clerk  on  the  return-day 
of  the  writ,  and  give  notice  thereof  to 
the  adverse  party.     Rule  135. 


CONTEMPT   FOR   VIOLATING   INJUNCTION.  47 

Rule  for  defendant's  examination  upon  interroga- 
tories.(a) 

{Title  of  cause.) 

The  sheriff  of  the  county  of  having  made  return  to  the 

attachment  issued  against  the  defendant,  ,  that  he  has 

taken  the  body  of  said  defendant  and  has  taken  a  bond  for  the 
due  appearance  of  said  according  to  the  exigency  of  said 

attachment;  and  said  attachment  and  return,  and  the  bond 
accompanying  the  same,  having  been  filed,  and  said  hav- 

ing entered  his  appearance  with  the  clerk  on  the  return-day  of 
the  writ,  and  given  notice  thereof  to  the  complainant's  solicitor, 
and  not  admitting  himself  to  be  guilty  of  the  contempt  alleged 
against  him  :    It  is  ordered  that  it  be  referred  to  ,  one  of 

the  masters  and  examiners  of  this  court  residing  in  the  city  of 
,  to  examine  said  defendant  upon  interrogatories  touch- 
ing his  contempt,  and  to  take  such  further  proofs  as  either  party 
may  produce  before  him  in  relation  to  the  alleged  contempt,  and 
that  he  report  such  answers  and  proofs  to  this  court. 

By  the  court. 

Dated,  .  Clerk. 

Interrogatories  for  the  examination  of  a  party,  &e. 

{Title  of  cause.) 

Interrogatories  to  be  exhibited  on  the  part  of  the  complainant 
for  the  examination  of  ,  a  defendant  in  this  cause,  pur- 

suant to  a  rule  entered  in  said  cause  on  the  {date.) 

{Hei'e  follow  the  interrogatories,  divided  into  paragraphs  and 
numbered  consecutively.) 

Answer  to  foregoing  interrogatories.(6) 

{Title  of  cause.) 
The  answer  and  examination  of  ,  a  defendant  in  this 

cause,  to  the  interrogatories  exhibited  by  the  complainant  for 

(a)  The  complainant  shall,  within  ment,  or  on  his  solicitor ;  and  in  ca«e 

eight  days  after  such  notice,  enter  a  of    his   neglect    so   to   do,   the   court 

ruie  of  course  for  the  defendant's  ex-  may  order  the  party  to  be  discharged 

amination  upcm  interrogatories  touch-  from  the  attachment,  with  costs.    Rule 

lag   his  contempt,  before  one  of  the  '136.     Jewett  v.  Dringer,  12  C.  E.  Or. 

masters  of  this  court,  and  serve  a  copy  271. 

thereof,  with  a  copy  of  the  interroga-  (6)  The  answer  to  the  interroga- 
tories,  on   the   defendant    in   attach-  tions,  in  case  of  an  attachment  for  a 


48  FORMS   OF   PLEADINGS. 

his  examination  pursuant  to  a  rule  of  this  court,  dated  {date.) 
To  the  first  interrogatory  this  examinant  answers  and  says 
that,  &c. 

{Here  follow  the  answers,  to  he  divided  into  paragraphs  and 
numbered  consecutively.) 

Sworn  and  subscribed  before  me,  this  {date.) 

{Signature  of  master  and  examiner.) 

Order    convicting    defendant    of    contempt    after 
examination  upon  interrogatories. 

{Title  of  cause.) 
A  writ  of  attachment  having  been  heretofore  issued  out  of  and 
under  the  seal  of  this  court  against  the  defendant,  ,  for 

his  contempt  in  {as  the  case  may  be,)  directed  to  the  sheriff  of 
the  county  of  ,  and  returnable  {date,)  and  the  said  sheriff 

having  returned  the  said  writ;  and  the  said  having  given 

bond  for  his  appearance,  and  entered  his  appearance  with  the 
clerk  on  the  return-day  of  the  writ,  and  giving  due  notice 
thereof,  and  not  admitting  the  contempt  alleged  against  him, 
was  examined  upon  interrogatories  before  ,  a  master  and 

examiner,  pursuant  to  a  rule  of  this  court  for  that  purpose ;  and 

contempt,  must  be  delivered  ore  tenus.  self  from  the  charge.  Magennis  v. 
State  V.  Fisler,  1  Haht.  305.  In  the  Parkhurst,  3  Gr.  Ch.  433. 
above  case  the  defendant  answered  If  the  accused  deny  the  contempt, 
the  interrogatories  from  a  printed  or  do  not  clearly  show  it  by  his 
paper  which  he  held  in  his  hand,  answers,  the  prosecutor  may  examine 
containing  answers  to  each  of  the  in-  witnesses  to  prove  it.  Ibid. 
terrogatories ;  afterwards  he  signed  When  the  party  attached  shall 
the  printed  answers  and  they  were  attend  before  the  master  upon  the  in- 
annexed  to  the  interrogatories.  Ex-  terrogatories,  if  any  questions  arise  in 
parte  affidavits  of  witnesses  cannot  be  respect  to  the  interrogatories,  they 
received ;  the  parties  must  produce  shall  be  settled  by  the  master,  and  the 
and  examine  witnesses  before  the  party  attached  shall,  within  four  days 
master,  so  that  they  may  be  cross-  after  they  are  submitted  to  or  settled, 
examined  by  the  adverse  party.  as  aforesaid,  put  in  his  examination  in 
Oumming  v.  Waggoner,  7  Paige  603.  writing ;  and  the  master  shall,  if 
A  party  under  an  attachment  for  an  required  by  the  adverse  party  so  to 
alleged  breach  of  an  injunction  is  not  do,  report,  with  the  interrogatories 
confined  to  his  answers  to  the  inter-  and  examination,  whether,  in  his 
rogatories  exhibited  to  him,  but  may  opinion,  the  examination  is  full  and 
examine  witnesses  to  exculpate  him-  satisfactory  or  not.     Bule  137. 


OF   INFANT   DEFENDANTS,  &C.  49 

it  now  appearing  to  the  Chancellor,  from  the  report  of  the  said 
master  and  the  answers  and  proofs  thereto  annexed,  that  the  said 
has  committed  the  contempt  with  which  he  is  charged, 
and  the  Chancellor  now  adjudging  him  to  have  been  guilty  of 
the  misconduct  alleged,  and  that  such  misconduct  was  calculated 
to  or  did  actually  defeat,  impair,  impede  or  prejudice  the  rights 
of  the  complainant  in  this  cause,  {or  as  the  case  may  be:)  It  is, 
on  this  (date),  on  motion  of,  &c.,  ordered,  that  said  do 

pay  to  the  complainant  the  costs(a)  of  these  proceedings,  to  be 
taxed,  and  do  also  pay  to  the  clerk  of  this  court  a  fine  of 
dollars  to  the  use  of  this  state.     And  it  is  further  ordered,  that 
the  said  be  committed  to  the  common  jail  of  the  county 

of  ,  there  to  remain  charged  upon  his  said  contempt  until 

he  shall  have  paid  such  fine  and  costs,  unless  the  Chancellor 
shall  see  fit  sooner  to  discharge  him,  and  that  a  warrant  issue 
accordingly.  (For  other  forms  applicable  to  this  proceeding,  see 
preceding  pages  under  the  head  of  "  Proceedings  to  Compel 
Answer." 


OF    THE    APPOINTMENT    OF    A  GUARDIAN    AD 
LITEM   FOR  INFANT  DEFENDANTS. 

Notice  to  infant  defendant  over  fourteen  years.(6) 

(Title  of  cause.)  >      On  bill,  &c. 

To  (infant  over  fourteen  years :) 

Take  notice,  that  I  shall  apply  to  the  Chancellor  of  this  state, 
on  Tuesday,  the  day  of  next,  at  ten  o'clock  in  the 

forenoon,  or  as  soon  thereafter  as  counsel  can  be  heard  thereon, 

(a)  An   attachment    for   contempt,  (6)  It  is  provided  in  the  sixty-fourth 

being  in  the  nature  of  a  criminal  pro-  rule,  that  where  an  infant  is  made  a 

ceeding,  costs  are  not  usually  allowed.  defendant  in  a  suit,  and  no  application 

Magennis  v.  Parkhurst,  3  Gr.  Ch.  433.  shall  be  made  on  his  behalf,  within 

The  payment  of  a  counsel  fee  cannot  four  days  next  after  the  day  of  appear- 

be  imposed,  as  a  punishment  for  con-  ance  specified  in  the  subpana  or  order 

tempt,  and  the  imposition  of  a  fine  is  of  publication,  for  the  appointment  of 

obligatory.     O'Rourke  y.  Cleveland,  4  a  guardian,  the  Chancellor  may,  on 

Dick.  Ch.  Rep.  577.  application   on   behalf    of    the   com- 


60 


FORMS  OF   PLEADINGS. 


at  the  State-house,  in  the  city  of  Trenton,  to  assign  and  appoint 

a  guardian  ad  litem  for  you  in  the  above-stated  cause. 

Solicitor  of  complainant. 
Dated, 

Notice  to  infant  under  fourteen  years.(a) 
To  {guardian^  father  or  mother,  or  as  the  case  may  be,)  of 

Take  notice,  that  1  shall  apply  to  the  Chancellor  of  this  state, 
on  the  day  of  next,  {or  "  instant,")  at  ten  o'clock  in 

the  forenoon,  or  as  soon  thereafter  as  counsel   can   be   heard, 
at    the   State-house,   in    the   city   of    Trenton,   to   assign   and 


plainant,  by  order,  assign  a  guardian 
ad  litem  (usually  the  clerk  of  the 
court)  for  such  infant.  It  is  usual  in 
practice  for  the  complainant's  solic- 
itor, if  he  has  reason  to  believe  that  no 
application  will  be  made  in  behalf  of 
the  infant,  to  proceed  in  the  first  in- 
stance for  the  appointment  of  such 
guardian  ;  should  a  guardian  be  after- 
wards appointed  for  the  infant  on  pe- 
tition, the  appointment  of  the  clerk  as 
aforesaid  is,  ipso  facto,  superseded.  In 
proceedings  under  the  sixty-fourth 
and  sixty-fifth  rules,  the  practice  is  to 
appoint  the  clerk  guardian  ad  litem. 
In  foreclosure  suits,  the  clerk  merely 
enters  an  appearance  for  the  infant ; 
in  other  cases,  he  will  enter  and  file  a 
formal  answer  for  such  infant.  The 
notice  must  be  served  on  the  infant 
personally,  if  of  the  age  of  fourteen 
years,  and  resident  in  the  state,  at 
least  fifteen  days  before  the  day  for 
making  the  application ;  and  it  may 
be  served  at  the  time  of  service  of 
subpoena,  or  at  any  time  after.  Bide 
64.  But  if  the  infant  be  under  four- 
teen years  of  age,  or  not  resident  in 
the  state,  the  notice  must  be  directed 
to,  and  served  on,  his  guardian  ap- 
pointed by  tl>&  Orphans'  Court,  if  any 
there   be ;   and  if  no  such  guardian. 


then  on  the  father  of  the  infant ;  if  no 
father,  then  on  the  mother;  provided, 
such  guardian,  father  or  mother  be- 
resident  in  the  state.  At  the  return- 
day  of  the  notice,  if  no  proper  appli- 
cation has  been  made  by  the  infant 
defendants,  or  by  any  person  or  per- 
sons on  their  behalf,  for  such  appoint- 
ment, the  complainant  will  be  entitled 
to  an  order  as  of  course,  appointing 
the  clerk  guardian  ad  litem  for  them. 
If,  however,  the  infants  reside  out  of 
the  state,  and  have  no  guardian  ap- 
pointed by  the  Orphans'  Court,  nor  a 
father  or  mother  resident  in  the  state, 
the  same  proof  of  publication,  &c., 
must  be  filed  as  in  the  case  of  adults ; 
and  in  addition  to  such  proofs,  an 
afBdavit  of  the  continued  non-resi- 
dence of  the  infants,  made  at  least 
four  days  after  the  day  of  appearance 
specified  in  the  order  of  publication, 
must  be  filed,  whereupon  an  order 
appointing  the  clerk  guardian  ad  litem 
for  such  infant  defendants  will  be 
granted. 

(a)  If  such  infant  reside  in  this 
state  and  has  no  father,  mother  or 
guardian  in  the  state  upon  whom  no- 
tice can  be  served,  then  tlie  notice 
is  to  be  served  upon  the  person  stand- 
ing in  loco  parentis  to  the  infant. 


OF   INFANT   DEFENDANTS,  &C.  51 

appoint  a  guardian  ad  litem  for  ,  an  infant  defendant  in 

the  above-stated  cause,  who  is  under  fourteen  years  of  age. 

Solicitor  of  complainant. 
Dated, 

Affidavit  of  notice  to  infant  defendant,  &c. 

county,  ss. —  ,  of  full  age,  being  duly  sworn  according  to 

law,  on  his  oath  saith — That  on  the  day  of  last 

past,  he  served  a  notice,  of  which  the  above  is  a  true  copy,  on 
,  who   is,  to   the   deponent's  knowledge,  an    infant   of 
the  age  of  fourteen  years  and  upwards,  by  reading  the  same  to 

,  and  delivering  to  the  original  notice ;  (or,  "  on 

guardian,  father  or  mother,"  as  the  case  may  be,  "  of  , 

an  infant,  by  reading  the  same  to  him  (or  her,)  and  delivering 
to  him  (or  her)  the  original  notice ;  and  that  at  the  time  of  the 
said  service,  the  said  informed  this  deponent  that  the  said 

infant  was  under  the  age  of  fourteen  years.") 
Sworn  and  subscribed,  &c. 

Affidavit  of  non-residence  of  infants, 
county,  ss. —  ,  of  full  age,  being  duly  sworn  according  to 

law,  on  his  oath  saith — That  and  are  infant  defend- 

ants in  a  certain  cause  now  pending  in  the  Court  of  Chancery  of 
New  Jersey,  in  which  are  complainants,  and  and 

others  are  defendants ;  and  that  they  still  reside  out  of  the  State 
of  New  Jersey,  to  wit,  in  the  State  of  ;  and  that  they 

have  no  father  or  mother,  nor  a  guardian  appointed  by  the 
Orphans'  Court,  resident  in  this  state. 

Sworn  and  subscribed,  &c. 

Order  for  the  appointment  of  a  guardian  on  ap- 
plication of  complainant. 

1       On  bill,  &c. 
{Title  of  cause.)  >  Order  appointing 

j  guardian. 

This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  andf  it  appearing  that  the  defendants 
,  infants  under  the  age  of  twenty-one  years,  have  been 


52  FORMS   OF   PLEADINGS. 

served  with  process,  to  appear  and  answer  the  complainant's 
bill,  and  that  they  have  neglected  to  apply  for  the  appointment 
of  a  guardian  to  defend  this  suit.  And*  it  further  appearing  by 
affidavit  that  the  defendants,  ,  are  infants  above  the  age  of 

fourteen  years,  and  that  due  notice  has  been  given  to  them  of 
this  application  :    It  is,  on  this  day  of  ,  &c.,  ordered, 

that  ,  clerk  of  this  court,  be  assigned  and  appointed  their 

guardian,  by  whom  they  may  appear  and  answer,  and  defend 
this  suit. 

{Or,  after  the  *,  "it  appearing  by  affidavit  that  the  defend- 
ant, ,  is  an  infant  over  the  age  of  fourteen  years,  and 
that  due  notice  has  been  given  to  her  of  this  application,  and 
that  due  notice  of  the  same  has  been  given,  ,  {father  or 
mother  or  guardian,  as  the  case  may  be,)  of  ,  who  is  an 
infant  defendant  under  the  age  of  fourteen  years :  It  is,  &c.," 
as  above.) 

{ Or,  after  f,  say :  "  it  appearing  to  the  court  that  and 

,  two  of  the  defendants  in  the  above-stated  cause,  were, 
by  an  order  of  this  court,  made  on  the  day  of  last 

past,  directed  to  appear,  plead,  answer  or  demur  to  the  com- 
plainant's bill  on  or  before  the  day  of  then  next; 
that  they  are  infants  under  the  age  of  twenty-one  years,  and 
have  neglected  to  apply  for  the  appointment  of  a  guardian  to 
defend  this  suit.  And  it  further  appearing  by  affidavit  that 
they  still  reside  out  of  this  state,  and  have  no  father,  mother  or 
guardian  in  this  state  to  whom  notice  of  this  application  could 
be  given  :  It  is  thereupon,  on  this  day  of  ,  &c.,  on 
motion  of  ,  of  counsel  with  the  complainants,  ordered, 
that  ,  clerk  of  this  court,  be  assigned  and  appointed  their 
guardian,  by  whom  they  may  appear  and  answer,  and  defend 
this  suit.") 

Appearance  for  infant. 

( Title  of  cause.) 

Appearance  entered  for  and  ,  infant  defendants 

in  the  above  cause,  by 

Guardian  ad  litem. 


OF   INFANT   DEFENDANTS,  &C.  53 

Petition  of   a  minor  over  fourteen  years  of  age 
for  appointment  of  guardian(a) 

In  Chancery  of  New  Jersey. 
To  his  Honor,  ,  Chancellor  of  the  State  of  New  Jersey : 

The  petition  of  ,  the  son  of  ,  late  of  the  township 

of  ,  in  the  county  of  ,  respectfully  showeth  that  your 

petitioner  is  one  of  the  defendants  named  in  a  bill  of  complaint 
filed  in  this  honorable  court  by  ,  late  of  the  township  of 

,  in  the  said  county  of  ,  complainant,  against  , 

and  your  petitioner  and  others,  defendants,  to  be  relieved  touch- 
ing the  matters  in  the  said  bill  of  complaint  set  forth ;  that 
your  petitioner  is  a  minor  under  the  age  of  twenty-one  years, 
and  over  the  age  of  fourteen  years;  that,  by  reason  of  his 
minority,  he  is  unable  to  answer  or  make  defence  unto  the  said 
bill  of  complaint  in  a  legal,  competent  and  proper  manner. 
Your  petitioner  therefore  prays  that  your  petitioner's  stepfather, 
,  who  is  also  one  of  the  defendants  to  said  bill  of  com- 
plaint, may  be  appointed  by  your  Honor,  in  this  honorable  court, 
guardian  ad  litem  of  your  petitioner,  for  him  and  in  his  behalf 
to  make  answer  and  defence  to  the  said  bill  of  complaint.  And 
your  petitioner  will  ever  pray,  &c. 

Dated,  &c.  (Signature.) 

Signed  in  the  presence  of — 

Annex  a  consent  of  the  proposed  guardian,  in  the  following  form: 

I,  above  named,  do  hereby  consent  and  agree  to  accept 

the  appointment  of  guardian  ad  litem,  above  prayed  for,  of  , 

(a)  The  infant  must  defend  himself  ment ;   an  agreement,  expressing  the 

by  liis   guardian   ad  litem,  duly  ap-  assent  of  the  person  petitioned  for,  to 

pointed  for  that  purpose ;  he  cannot  accept  of  the  appointment,  and  also 

«ue  by  his  guardian,  but  only  by  his  an  affidavit  or  affidavits  that  the  peti- 

next    friend.     Story^s   Eq.  PL,  l    70.  tion  and  agreement  were  duly  signed, 

For  the  purpose  of  having  a  guardian  and  verifying  the  age  of  the  infant, 

appointed  for  an  infant,  to  answer  and  must  accompany  the  petition.     Rule 

defend  a  suit,  a  petition  may  be  pre-  63.     The  guardian   so   appointed  is, 

•  sented  by  the  infant,  if  above  the  age  usually,  the  nearest  relation  not  con- 

of  fourteen   years,  or,  if  under   that  cerned  in  point  of  interest  adversely 

age,  by  his  father  or  some  other  friend  to  the  right  of  the  infant  in  the  matter 

in  his  behalf,  praying  such  appoint-  in  question.     Mitf.  PL  82. 


54  FORMS   OF   PLEADINGS. 

son  of  ,  a  minor  under  the  age  of  twenty-one  years,  to 

make  answer  and  defence,  in  behalf .  of  the  said  infant,  to  the 
bill  of  complaint  lately  exhibited  in  the  Court  of  Chancery  of 
the  State  of  New  Jersey  by  ,  the  complainant,  against  me, 

the  said  and  ,  said  and  others,  defendants. 

In  witness  whereof,  I  have  hereunto  subscribed  my  name,  the 
day  of  ,  in  the  year,  &c. 

(Signature.) 
Signed  in  the  presence  of — 

And  let  the  subscribing  witness  make  an  affidavit  at  the  foot  of 
the  consent,  of  the  following  purport : 
New  Jersey,  ss. —  ,  late  of  ,  in  the  county  of 

,  of  lawful  age,  being  duly  sworn  according  to  law,  on 
his  oath  saith — That  he,  this  deponent,  was  present  and  saw 

subscribe  his  name  to  the  above-written  agreement,  the 
same  having  been  by  this  deponent  first  read  over  to  the  said 

,  and  this  deponent  was  also  present  and  saw  the  above- 
named  subscribe  the  foregoing  petition,  the  said  petition 
having  been  by  this  deponent  first  read  over  to  the  said  ; 
and  this  deponent  saith,  that  from  information  given  to  him, 
and  from  the  appearance  of  the  said  ,  this  deponent  verily 
believes  and  hath  no  doubt  that  the  said  is  under  the  age 
of  twenty-  one  years ;  and  this  deponent  further  believes,  from 
the  above- stated  grounds  of  belief,  that  the  said  is  over 
the  age  of  fourteen  years.  (Signature.) 
Sworn  and  subscribed  at             ,  in  the  county  of            ,  this 

day  of  ,  A.  D.  ,  before  me. 

Order    for    appointment    of    guardian    for    infant 
over  fourteen  years  on  foregoing  petition. 

//n.  7      /.  X  1  Order 

(Title  of  cause.)  >         ...  j.       p    /  \ 

^  J  y  j  appomting  guardian,  &c.(a) 

Upon  reading  the  petition  filed  in  this  cause  by  ,  one 

of  the  defendants  in  this  cause,  setting  forth  that  he,  the  said 

(a)  An  order  appointing  the  clerk  the  affidavit  of  the  superintendent  of 

of  the  court  guardian  ad  litem  of  a  the  asyhim  where  the  lunatic  was,  and 

lunatic  was  granted  without  notice  on  showing   that    the   defendant  was   a 

petition  of  complainant,  verified   by  lunatic  and  unfit  to  govern  himself  or 


OF  INFANT  DEFENDANTS,  &C.  55 

,  is  a  minor  over  the  age  of  fourteen  years,  and  praying 
that  ,  one  of  the  defendants  in  this  cause,  the  stepfather 

of  the  petitioner,  may  be  appointed  his  guardian  ad  litem,  for 
him  and  in  his  behalf  to  make  answer  and  defence  to  the  com- 
plainant's bill  of  complaint ;  and  upon  reading  the  written 
assent  of  the  said  annexed  to  said  petition,  that  said  ap- 

pointment be  made,  and  also  the  affidavit  of  ,  verifying 

the  age  of  the  said  petitioner,  and  setting  forth  that  the  said 
petition  and  assent  were  signed  in  his  presence :    It  is,  on  this 

day  of  ,  &c.,  ordered,  that  the  said  be  ap- 

pointed guardian  ad  litem  of  the  said  ,  by  whom  he  may 

appear  and  answer,  and  defend  this  suit. 

Petition  on  behalf  of  minors  under  fourteen  years 
of  age  for  appointment  of  guardian. 

In  Chancery  of  New  Jersey. 
To  His  Honor,  ,  Chancellor  of  the  State  of  New  Jersey  : 

The  petition(a)  of  {father,  mother  or  next  friend,  as  the 

case  may  be,)  respectfully  showeth  that  your  petitioner,  , 

is  the  of  ,  minors  under  the  age  of  fourteen  years, 

the  children  of  ,  late  of  the  township  of  ,  in  the  county 

of  ,  deceased ;  that  the  said  minors  are  three  of  the  de- 

fendants named  in  the  bill  of  complaint  exhibited  in  this 
honorable  court  by  ,  of  the  said  county  of  ,  against 

and  the  said  minors  and  one  ,  another  minor  and 

son  of  the  said  ,  deceased ;   that  the  said  is  aged 

thirteen  years  the  day  of,  &c.,  the  said  was  ten  years 

old  on  the  day  of,  &c,,  and  your  petitioner  respectfully 

prays  that  your  petitioner  may  be  appointed  guardian  'ad  litem 
to  defend  the  said  minors,  ,  against  the  said  bill  of  com- 

plaint of  the  said 

Dated,  &c.  [Signature.) 

Present — 

his  estate.   Potter  v.  Hora,  May  Term,  (a)  Where  the  infant  is  under  four- 

1878.     This  practice,  however,  is  not  teen  years  of  age,  and  consequently 

approved  inordinary  cases.  Generally  not  capable  of  selecting  a  guardian, 

notice  must   be  given  as    before  de-  the  petition  is  by  the  parent  or  next 

scribed.  friend  of  the  infant. 


56  FOEMS   OF   PLEADINGS. 

Consent  to  be  annexed. 

I,  ,  of  the  township  of  ,  in  the  county  of  , 

do  hereby  declare  and  express  my  assent  and  willingness  to 
accept  of  the  appointment  of  guardian  ad  litem  above  prayed 
for. 

Dated,  &c.  (Signature.) 

Present — 

Affidavits  to  be  annexed. 

New  Jersey,  ss. —  ,  the  petitioner  named  in  the  fore- 

going petition,  having  been  duly  sworn  according  to  law,  on  her 
oath  saith — That  the  above  petition  truly  expresses  the  several 
and  respective  ages  of  ,  &c.,  in  the  said  petition  named, 

according  to  the  best  of  the  recollection  and  belief  of  this  de- 
ponent. 

(Signature.) 

Sworn  and  subscribed,  &c. 

New  Jersey,  ss. —  ,  late  of  ,  in  the  county  of  , 

of  lawful  age,  being  duly  sworn  according  to  law,  on  his  oath 
saith — That   he   was   present   and   saw  ,  the   petitioner 

named  in  the  foregoing  petition,  duly  sign  the  same  by  sub- 
scribing name  thereto.  And  this  deponent  further  saith 
that  he  was  present  and  saw  the  said  subscribe  his  name 
to  the  consent  and  agreement  written  at  the  foot  of  the  above- 
written  petition. 

(Signature.) 

Sworn  and  subscribed,  &c. 

Order  appointing  guardian  of   infant    defendants 
under  fourteen  years  of  age. (a) 

( Title  of  cause.)  I     Order,  &c. 

Upon  reading  the  petition  filed  in  this  cause  by  the  defend- 
ant, ,  setting  forth  that  the  Eaid  is  the  mother  of 

(a)  If  a  person  is,  by  age  or  infirm-  mit   him   to  appear   and   answer   by 

ity,  reduced  to  a  second  infancy,  upon  guardian.     In  re  Barker,  2  Johns.  Ch. 

due  proof,  by  affidavit  or  otherwise,  B.  235.   If  it  shall  come  to  the  knowl- 

of  such  imbecility,  the  court  will  ad-  edge  of  the  Chancellor,  in  the  progress 


ADMINISTRA.TOR   AD   PROSEQUENDUM. 


57 


and  ,  two  of  the  defendants  in  this  cause,  and  that 

her  said  children  are  minors  under  the  age  of  fourteen  years, 
and  praying  that  the  said  may  be  appointed  guardian  ad 

litem  of  the  said  minors ;  and  upon  reading  the  written  assent  of 
the  said  to  said  appointment,  and  the  affidavit  of  that 

said  petition  and  assent  were  duly  signed,  and  the  affidavit  of 
the  said  ,  wife  of  the  said  ,  verifying  the  age  of  her 

said  children :    It  is,  on  this  day  of  ,  ordered  that 

the  said  be  appointed  guardian  ad  litem  of  the  said 

and  ,  by  whom  they  may  appear  and  answer,  and  defend 

this  suit. 


OF  ADMINISTEATION  AD   PROSEQUENDUM.(a) 


of  the  suit,  that  a  party  complainant 
or  defendant  is  of  unsound  mind,  he 
will  take  notice  of  the  fact,  and  no  de- 
cree will  be  made  until  after  a  next 
friend  or  guardian  ad  litem,  (as  the 
case  may  be,)  shall  have  been  ap- 
pointed for  such  person.  And  see  C. 
D.  Owing' s  Case,  1  Bland  373,  and  note. 

(a)  Administration  ad  litem  or  ad 
prosequendum  is  granted  to  substantiate 
proceedings  in  chancery  when  the 
proper  representatives  of  the  deceased 
will  not  take  upon  themselves  to  act, 
and  when  it  is  necessary  that  the  in- 
terests of  the  deceased  should  be  rep- 
resented in  the  proceedings.  See 
Harris  v.  Milhurn,  2  Hagg.  62;  1 
Wms.  on  ExWa  522 ;  Lothrop's  Case,  6 
Stew.  Eq.  246. 

The  grant  of  letters  of  administra- 
tion ad  litem  makes  the  grantee  com- 
plete representative  of  the  estate  to 
the  extent  of  the  authority  which  the 
letters  purport  to  confer,  and  a  decree 


against  such  grantee  is  therefore  bind- 
ing upon  any  one  who  may  afterwards 
take  out  general  administration  to  the 
estate.  Davis  v.  Chanter,  2  Phillips  oio. 
The  grant  runs,  "  to  attend,  supply, 
substantiate  and  confirm  the  proceed- 
ings already  had,  or  that  shall  or  may 
be  had,  in  the  said  suit  in  the  Court 
of  Chancery,  or  in  any  other  cause  or 
suit  which  may  be  commenced  in  the 
said  court,  or  in  any  other  court, 
between  the  said  parties,  or  any  other 
parties,  touching  or  concerning  the 
matters  at  issue  in  the  said  suit,  and 
until  a  final  decree  shall  be  made  or 
had  therein,  and  the  said  decree  car- 
ried into  execution,  and  the  execution 
thereof  fully  completed,  but  no  further 
or  otherwise  in  any  manner  what- 
ever." The  grantee  can  only  carry  on 
the  suit  to  its  termination  ;  he  cannot 
receive  its  fruits,  and  therefore  no 
bond  is  required  of  such  an  adminis- 
trator. 


58  FORMS   OF   PLEADINGS. 

Petition  to  the  Ordinary  for  letters  of  adminis- 
tration ad  prosequendnrii.(o) 

In  the  Prerogative  Court  of  New  Jersey. 

To  the  Ordinary  or   Surrogate-Qeneral  of  the  State  of  New 
Jersey  : 
The  petition  of  shows  that  he  is  the  complainant  in  a 

certain  causfe  in  the  Court  of  Chancery  of  this  state  against 

and  others,  to  foreclose  a  mortgage  upon  certain  lands  in 
the  county  of  ;  that  ,  deceased,  late  of  the  city  of 

New  York,  in  the  State  of  New  York,  was  at  his  death  the 
holder  of  a  certain  other  mortgage  on  said  lands,  dated,  &g.,  to 
secure  dollars,  and  recorded,  ct-c,  {or  as  the  case  may  be.) 

That  the  said  died  on  [date,)  in  the  city  and  State  of 

New  York,  {or  as  the  case  may  be,)  having  first  made  his  last 
will  in  writing,  wherein  he  appointed  the  executor  thereof. 

That  on  or  about  the  {date,)  said  will  was  duly  proved  before 
the  surrogate  of  the  county  and  State  of  New  York  by  the  said 

,  and  letters  testamentary  were  issued  thereon  to  him, 
and  he  took  upon  himself  the  execution  thereof,  and  that  said 
will  has  not  been  proved  in  this  state,  or  any  letters  of  adminis- 
tration granted  in  this  state  of  the  goods,  &c.,  of  said  decedent. 
That  according  to  the  rules  and  practice  of  the  Court  of 
Chancery  your  petitioner  is  unable  to  foreclose  the  equity  of 
redemption  under  the  last- mentioned  mortgage  without  a  repre- 
sentation of  said  ,  deceased,  in  this  state.  He  therefore 
prays  that  an  administrator  ad  prosequendum  may  be  appointed 
by  the  Ordinary  to  represent  the  estate  of  said  in  said  suit 
in  chancery. 

{Signature  of  proctor.) 

There  must  be  proof  by  affidavit  of  the  death  of  the  person 
on  whose  estate  the  letters  are  sought,  and  of  the  fact  that  no 
administration  thereon  exists  in  this  state. 

(a)  This  application  may  be  made  duni  is  made  a  party  defendant  and 

in  advance  of  the  filing  of  a  bill  in  included  in  the  prayer  for  subpoena, 

chancery,  and  in  such  case  the  person  as  in  ordinary  cases, 
appointed  administrator  ad  prosequen- 


} 


ADMINISTRATOR   AD   PROSEQUENDUM.  69 

Order  for  limited  administration  on  the  above 
petition. 

New  Jersey  Prerogative  Court. 
In  the  matter  of  the  estate 
of  ,  deceased. 

It  appearing  by  the  petition  of  that  he  is  the  com- 

plainant in  a  certain  cause  in  the  Court  of  Chancery  of  New 
Jersey  against  and  others,  for  the  foreclosure  of  a  certain 

mortgage  made  by  and  now  held  by  the  said  petitioner, 

and  that  another  mortgage  made  by  said  and  wife  to 

is  an  encumbrance  on  the  lands  mortgaged  to  said  peti- 
tioner subsequent  and  subject  to  the  lien  of  the  mortgage  of  said 
petitioner,  and  that  said  {the  second  encumbrancer)  died  intestate, 
and  that  no  administrator  of  his  estate  has  been  appointed  in 
this  state,  and  that  it  is  necessary  for  the  proper  prosecution  of 
said  suit  in  the  Court  of  Chancery  that  an  administrator  should 
be  appointed  of  the  estate  of  said  ,  deceased,  in  this  state, 

for  the  purposes  of  said  suit : 

It  is,  on  this  {date,)  ordered  by  the  Ordinary  that  letters  of 
administration  upon  the  estate  of  the  said  ,  deceased,  be 

issued  by  the  register  of  this  court  to  ,  limited  only  to  the 

purpose  of  attending,  supplying,  substantiating  and  confirming 
the  proceedings  already  had,  or  which  shall  or  may  be  hereafter 
had,  in  the  said  above-mentioned  suit  in  the  Court  of  Chancery, 
or  in  any  other  suit  or  suits  which  may  hereafter  be  commenced 
in  that  or  any  other,  court  for  the  relief  sought  by  the  bill  in  the 
Court  of  Chancery,  and  until  a  final  decree  shall  be  made 
therein,  and  such  decree  carried  into  execution,  and  the  execution 
thereof  fully  completed,  but  no  further  or  otherwise  in  any 
manner  whatsoever. 

Form  of  letters  of  administration  ad  prosequendum. 
To  all  to  whom  these  presents  shall  come : 

Whereas  ,  late  of  {residence,)  is  dead,  and  no  letters 

testamentary  or  of  administration  of  his  (or,  her)  estate  have 
been  granted  in  this  state,  and  it  is  necessary,  for^the  proper 
prosecution  of  a  certain  suit  in  the  Court  of  Chancery  of  this 


60  FORMS  OF   PLEADINGS. 

state  wherein  is  complainant  and  and  and 

others  are  defendants,  that  an  administrator  should  be  appointed 
of  his  {or,  her)  estate  in  this  state  for  the  purposes  of  said  suit. 

Therefore  I,  ,  Ordinary  or  Surrogate-General  of  the 

State  of  New  Jersey,  do  hereby  appoint  administrator  of 

all  and  singular  the  goods,  chattels  and  credits  of  said  deceased, 
limited,  however,  to  and  only  to  attending,  supplying,  substan- 
tiating and  confirming  the  proceedings  already  had,  or  that  shall 
or  may  be  had  in  said  suit,  or  in  any  other  cause  or  suit  in  that 
or  any  other  court  for  the  relief  sought  by  the  bill  in  said  suit 
in  chancery,  and  until  a  final  decree  shall  be  made  therein,  and 
such  decree  be  carried  into  execution,  and  the  execution  thereof 
fully  completed,  and  with  no  further  powers  or  otherwise  in  any 
manner  whatsoever. 

Witness,  &c. 

Order  admitting  administrator  ad   prosequendum 
a  party  defendant. («) 

{Title  of  cause.) 

It  appearing  to  the  court  that  ,  administrator  ad  prose- 

quendum of  ,  deceased,  duly  appointed  as  such   by  the 

Ordinary  of  the  State  of  New  Jersey,  is  a  proper  and  necessary 
party  defendant  in  this  suit :  It  is,  on  this  {date,)  on  motion  of 
,  of  counsel  with  the  complainant,  ordered  that  the  said 
,  administrator  as  aforesaid,  be  made  a  party  defendant 
hereto,  and  that  the  bill  of  complaint  herein  stand  amended 
accordingly,  and  that  the  complainant  proceed  further  herein 
according  to  law  and  the  course  of  this  court. 

(a)    In    case    the   appointment    is  party  to  the  suit  will  be  made  and  he 

made  pending  the  suit  in  chancery,  will  enter  his  appearance.     The  costs 

the  complainant's  solicitor  will  tile  in  of  the  proceeding  will  be  included  in 

the   clerk's   office  the   letters   issued,  the  complainant's  taxed  costs  of  the 

and  then  an  order  admitting  him  a  suit. 


EXCEPTIONS   TO   BILL. 


61 


PROCEEDINGS  BY  A  DEFENDANT  BEFORE 
PLEADING. 


Exceptions  to  bill  for  impertinence,  &c.(a) 

,„.,,.  ,  (On  bill  for  divorce. 

iliUe  of  cause.)  >    tj^        l-       4.    u-n 

^  -^  ^  I     Jlixceptions  to  bill. 

Exceptions  taken  by  ,  defendant,  to  the  bill  of  com- 

plaint filed  against  him  in  the  above-stated  cause  by  , 

complainant. 


(rt)  The  defendant,  at  any  time  be- 
fore he  has  filed  liis  answer  or  plea  or 
demurrer  to  the  bill,  may  have  any 
irrelevant  matter  stricken  out,  upon  a 
reference  for  that  purpose, .  Woodward 
V.  Astley,  Bunhury  304;  Wallis  v. 
Atkinson,  1  Fowler's  Ex.  Pr.  449; 
Camden  and  Aniboy  R.  JR.  Co.  v. 
Steicart,  4  C.  E.  Gr.  344.  He  may 
refer  it  for  scandal  at  any  time. 
Woodward  v.  Astley,  supra;  Anon.,  2 
Vesey,  Sr.,  631.  Though  after  obtain- 
ing an  order  for  time  to  answer,  he 
cannot  refer  the  bill  for  impertinence 
merely.  Maltby  v.  Phillot,  1  Fowler's 
Ex.  Pr.  443 ;  Ferrar  v.  Ferrar,  Dick. 
173.  Exceptions  to  a  bill  for  scandal 
or  impertinence  are  taken  in  the  same 
manner  as  exceptions  to  an  answer  for 
insufficiency.  JRule  76.  A  copy  of 
the  exceptions  must  be  served  as  in 
the  case  of  exceptions  to  answers  for 
insufficiency.  See  Pule  73.  The  ex- 
ceptions should  not  contain  the  whole 
impertinent  matter  at  large.  A 
specification  by  page  and  folio,  and 
the  beginning  and  concluding  words 
of  a  sentence,  are  sufficient.  See  Wag- 
staff  V.  Bryan,  1  Buss.  &  Mylne  28  ; 
Whitmarsh  v.  Campbell,  1  Paige  645. 
The  English  order  (the  11th)  provides 
that  no  order  shall  be  made  for  refer- 
ring any  pleading  or  other  matter  de- 
pending before  the  court  for  scandal 
or  impertinence  unless  exceptions  are 


taken  in  writing,  and  signed  by  coun- 
sel, describing  the  particular  passages 
which  are  considered  to  be  scandalous 
or  impertinent.  See  Hitchcock  v. 
Rhodes,  15  Stew.  Eq.  495. 

After  the  expiration  of  six  days 
from  the  service  of  a  copy  of  the 
exceptions  on  the  complainant  or  his 
solicitor,  if  no  notice  of  submission  has 
been  received  by  the  defendant,  or  a 
submission  to  some  of  them  only,  and 
upon  the  filing  in  the  clerk's  ofiice  of 
the  proof  of  such  service,  the  clerk 
will  enter  a  rule  in  the  common  rule- 
book,  referring  the  exceptions  to  a 
master.  Bule  73.  All  exceptions  for 
impertinence  or  scandal  must  be 
referred,  by  one  rule,  to  the  same 
master.  Bule  72.  The  complainant 
may  submit  to  the  exceptions,  and  if 
he  does  so,  must,  within  six  days  after 
receiving  them,  give  a  written  notice 
to  the  defendant's  solicitor  of  his  sub- 
mission to  all  or  any  of  them.  Bule 
73.  He  must  pay  the  costs  of  those 
he  submits  to,  {Ride  73,)  and  an  order 
may  be  entered  of  course,  on  filing 
the  notice  of  submission,  that  the 
plaintiff  pay  the  costs  within  twenty 
days  after  the  service  of  the  order  on 
him,  or  his  solicitor. 

Any  objection  to  a  bill  may  be 
made  and  adjudicated  upon,  on  mo- 
tion, without  the  filing  of  exceptions, 
but  the  notice  of  such  motion  (which 


62  FOKMS  OF   PLEADINGS. 

The  defendant  excepts  to  all  the  parts  of  said  bill  herein  de- 
scribed, as  being  matter  not  material  to  said  suit,  and  which 
cannot  aid  the  complainant  in  obtaining  the  relief  sought  by  said 
bill,  and  prays  that  they  may  be  expunged,  with  costs,  viz. : 

First. — All  that  part  of  the  bill,  &c. 

Second. — All  that  part  of  the  bill,  &c. 

[Signature  of  solicitor  and  counsel.) 

Rule  referring  exceptions.(^') 

( Title  of  cause.)  \        {Date  of  entry  of  rule.) 

The  defendant  having  filed  exceptions  to  the  complainant's 
bill  in  this  cause,  it  is  ordered  that  it  be  referred  to  j       -j 

one  of  the  masters  of  this  court,  to  look  into  the  complainant's 
bill  and  the  said  exceptions,  and  examine  and  report  to  this 
€ourt,  with  all  convenient  speed,  whether  the  said  exceptions  be 
well  taken  or  not. 

Entered  by  ,  solicitor  for  complainant. 

By  the  court.  Cleric. 

Master's  summons. 

[Title  of  cause.) 

Sir — You  are  hereby  summoned  to  be  and  appear  before  me, 

at  my  office.  No.  street,  in  the  city  of  ,  on 

,  the  day  of  next,  at  o'clock  in  the 

noon,  when  I  shall  proceed  to  hear  and  consider  of  the 

matters  in  reference  before  me  in  the  said  cause,  on  exceptions 

to  the  complainant's  bill  therein. 

Given  under  my  hand  this  day  of  ,  18     . 

To  [defendant.)  Master. 

shall  be  an  eight-days'  notice,)  must  (a)  Exceptions  to  a  bill  are  referred 

state  the  particular  ground  or  grounds  in  the  same  manner  as  exceptions  to 

of  objection.   The  making  of  a  motion  an  answer.     Rule  76.     On  filing  the 

under   this   rule  shall   be   deemed   a  exceptions,  the  defendant  must  serve 

waiver  of  the  right  to  except.     Rule  a  copy  on  the  complainant's  so-licitor, 

213.     If  the  bill  presents  no  ground  and  wait  six  days   before   he  enters 

of  equity   it    may   be   dismissed    on  with  the  clerk  his  rule  to  refer  the 

motion  under  this  rule.     Reading  v.  bill    and    exceptions   to   the   master. 

Wilson,  11  Stew.  Eg.  446.  See  rule  73. 


EXCEPTIONS   TO   BILL. 


63 


State  of  New  Jersey,  ss. —  being  duly  sworn  saith — 

That  on  the  day  of  last  past,  he  served  a  true  copy 

of  the  within  summons  upon  ,  solicitor  of  the  above-named 

complainant,  by  delivering  the  same  to  him  personally,  at  the 
same  time  showing  the  original. 

(Jurat.)  (Signature.) 


Master's  report  on  exceptions.('0 

I      On  exceptions  to  bill. 
j  Master's  report. 

In  pursuance  of  a  rule  of  the  Court  of  Chancery,  entered  in 
the  above  cause,  bearing  date  on  the  day  of 


(Title  of  cause.) 


(a)  The  master  to  whom  tlie  excep- 
tions are  referred,  as  provided  by  the 
19 ill  rule,  shall  decide  and  report 
upon  them  within  thirty  days  after 
they  are  filed,  {Bev.,  p.  110,  ^  34,)  or 
they  will  be  considered  as  abandoned. 
Rule  76.  The  master,  upon  being 
served  with  a  copy  of  the  rule  of 
reference,  will  assign  a  day  and  place 
to  hear  the  parties  on  the  exceptions, 
and  will  issue  his  summons  to  the 
adverse  party,  requiring  his  attend- 
ance at  such  time  and  place,  which 
summons  shall  be  served  at  least  four 
entire  days  before  the  day  assigned 
for  the  hearing,  by  the  party  obtain- 
ing the  reference,  and  he  shall  make 
proof  thereof  to  the  master;  and  if 
the  party  summoned  shall  not  appear, 
or  good  cause  shall  not  be  shown 
why  he  does  not,  the  master  may  pro- 
ceed ex  parte  ;  and  if  the  party  obtain- 
ing the  summons  shall  not  appear  at 
the  time  and  place,  or  show  cause 
why  he  does  not,  the  master  may 
either  proceed  ex  parte  or  the  party 
obtaining  the  summons,  and  not  ap- 
pearing, shall  lose  the  benefit  of  the 
reference  at  the  election  "of  the  other 
party.  Mule  43,  and  see  Byington  v. 
Wood,  1  PaUje  145.    When  the  solici- 


tors on  each  side  attend  at  the  time 
and  place  appointed,  the  rule  of  refer- 
ence is  produced,  and  the  master  looks 
into  the  bill  and  the  exceptions,  the 
solicitors  suggesting  to  him  their  rea- 
sons why  the  bill  is  Or  is  not  scanda- 
lous or  impertinent.  The  master  then 
gives  his  opinion  upon  the  exceptions 
and  certifies  the  same  in  a  report  to 
the  court.  The  report,  when  signed 
by  the  master,  is  taken  away  by  the 
party  in  whose  favor  it  is  made  and 
filed  1  Harr.  Pr  230.  .Thereupon 
the  clerk  will  enter  a  rule  nisi  to  con- 
firm the  master's  report.  Miller  v. 
Miller,  nC.E.  Gr.  423.  Where  the 
complainant  took  no  rule  nisi  to  con- 
firm the  master's  report,  but  gave 
notice  to  the  defendant's  solicitor  of 
filing  it,  and  exceptions  were  filed,  but 
not  within  eight  days  from  the  time 
of  service  of  the  notice,  a  motion  to 
strike  out  exceptions  was  refused,  on 
the  ground  that  no  rule  nisi  had  been 
taken  and  served.  Ibid.  The  rule 
of  the  court  is  that  the  report  of  a 
master  on  matters  referred  to  him 
will  be  taken  as  correct  until  some 
error  is  shown.  The  burden  of  this  is 
on  the  exceptant.  National  Bank  of 
Metropolis  v.  Sprague,  8  C.  E.  Or.  81. 


64  FORMS   OF    PLEADINGS. 

last,  whereby  the  exceptions  filed  by  the  defendant  to  the  com- 
plainant's bill  of  complaint  were  referred  to  the  subscriber, 
one  of  the  masters  of  the  said  court,  to  report  thereon  whether 
the  exceptions  are  well   taken  or   not,  I,  ,  master  as 

aforesaid,  do  report  to  his  Honor  the  Chancellor  that  I  have 
been  attended  by  ,  of  counsel  with  the  complainant,  and 

by  ,  of  counsel  for  the  defendant,  and  having  heard  the 

arguments  of  the  respective  counsel,  and  examined  and  con- 
sidered the  said  bill  of  complaint,  and  the  several  exceptions 
thereto,  I  do  respectfully  report  as  follows : 

The  first  exception  is  well  taken,  inasmuch  as  the  alleged 
scandalous  and  defamatory  letter  set  out  in  the  bill  is  imma- 
terial to  the  charge  of  adultery  set  out,  and  for  which  relief  is 
prayed ;  and  if  the  letter  was  written  by  defendant  as  stated, 
it  would  not  prove  or  tend  to  prove  the  charges  of  adultery,  and 
is,  therefore,  impertinent  matter,  and  should  be  expunged. 

The  second  and  fourth  exceptions  are  also  well  taken ;  the 
matters  excepted  to  are  immaterial,  and  the  counsel  of  the  com- 
plainant, on  argument,  did  not  insist  on  these  matters  as  material. 

The  third  exception  is  also  well  taken,  inasmuch  as  it  alleges 
cruel  treatment  by  defendant  towards  complainant. 

These  charges  are  immaterial  and  impertinent  in  the  bill, 
which  prays  a  decree  for  divorce  on  the  ground  of  adultery,  and 
should  be  expunged. 

Respectfully  submitted. 

{Signature  of  master  in  chancery.) 
Dated 

Rule  nisi  to  confirm  report.(^) 

{Title  of  cause.)  >  {Date.) 

Upon  reading  and  filing  a  report  made  in  this  cause  by  , 

one  of  the  masters  of  this  court,  bearing  date  on  the 
day  of  ,  in  the  year  one  thousand  eight  hundred  and 

(a)  It  is  the  practice,  upon  filing  a  C.  E.  Gr.  39 ;  Miller  v.  Miller,  11  C 
report  on  exceptions  to  a  bill  or  E.  Gr.  423.  Serve  a  copy  of  the  fore- 
answer,  to  enter  a  rule  that  the  same  going  rule  on  the  solicitor  of  corn- 
shall  be  confirmed,  unless  cause  be  plainant,  and  file  affidavit  of  such 
shown  in  eight  days  after  the  service  service  in  the  clerk's  ofiice. 
of  the   same.      Weber   v.   Weitling,  3 


EXCEPTIONS   TO    BILL.  65 

,  it  is  ordered  that  the  said  report,  and  all  the  matters 
and  things  therein  contained,  do  stand,  in  all  things,  confirmed, 
according  to  the  true  tenor  and  meaning  thereof,  unless  the 
complainant  {or  defendant)  shall,  within  eight  days  after  ser- 
vice upon  him  of  a  copy  of  this  rule,  show  good  cause  to  the 
contrary. 

Entered  by  ,  solicitor  of  the  defendant  {or  complainant.) 

By  the  court. 

Clerk. 

Exceptions  to  master's  report  by  complainant. (a) 

I  On  exceptions  to 

(Title  of  cause.)  >  ,    , 

"<  J  ^  [  master  8  report. 

Exceptions  taken  by  the  complainant  in  this  cause  to  the 
report  made  therein,  on  the  day  of  ,  a.  d.  eighteen 

hundred  and  ,  by  ,  one  of  the  masters  of  this 

court,  to  whom  were  referred  the  exceptions  filed  by  the  de- 
fendant to  the  complainant's  bill  of  complaint,  by  the  rule 
made  in  the  said  cause,  bearing  date  the  day  of  , 

eighteen   hundred    and  ,  touching   the   matters   therein 

,  referred  to  him. 

First  exception.  For  that  the  said  master  has  reported  as  fol- 
lows :  "  The  first  exception  is  well  taken  inasmuch  as  the  alleged 

(a)  Exceptions  to  the  master's  report  will  be  confirmed.     Morris  \.  Taylor, 

must  be  filed  within  eight  days  from  8   C.  E.  Gr.  134.     Notice  of  hearing 

the  service  of  the  rule.  Weher  v.  Weit-  is    good    thougli    dated   on    Sunday, 

ling,  supra.     But  though  they  be  filed  Taylor  v.  Thomas,  supra.     Or  now  by 

too  late,  nevertheless,  the  Chancellor,  rule  the  exceptions  may  be  set  dowa 

on  being  satisfied  of  merits  on  the  part  to  be  heard  at  any  day  in  term,  on  the 

of  exceptant,  and  that  the  exceptions  application   of  either   party,  on   five 

are  not  intended  for  delay,  may  let  days'    notice.      Rule   12.      If    either 

them  stand.     Taylor  v.  Thomas,  1  Gr.  party  neglects   to   appear   and   argue 

Ch.   106.     Exceptions   to   a   master's  exceptions    before    the  master,   such 

report  must  be  set  down  for  hearing  party  cannot  be  permitted  afterwards 

and  placed  upon  the  calendar.    Either  to   bring  them   before   the   court   by 

party  may  do  it.     Miller's  AdmW  v.  exceptions  to  the  report  of  the  master. 

Miller,  11   C.  E.  Gr.  424.     And   the  And  no  exceptions  can  be  taken  to  a 

rule  setting  down  the  exceptions  for  master's  report,  which  are  not  founded 

argument  must  be  both  entered  and  upon  objections  distinctly  taken  before 

served   before   the  expiration  of  the  the    master.      Byinglon    v..  Wood,   1 

time  in   the  rule  nisi,  or  the  report  Paige  145. 


66  FORMS   OF   PLEADINGS. 

scandalous  and  defamatory  letter  set  out  in  the  bill  is  immaterial 
to  the  charge  of  adultery  set  out,  and  for  which  relief  is  prayed  ; 
and  if  the  letters  were  written  by  defendant  as  stated,  it  would 
not  prove,  or  tend  to  prove,  the  charge  of  adultery,  and  is, 
therefore,  impertinent  matter,  and  should  be  expunged." 

And  the  complainant  insists  that  the  alleged  scandalous  and 
defamatory  letters  being  the  defendant's  own  letters,  ought  to 
stand,  as  part  of  complainant's  case,  as  showing  the  character  of 
the  defendant  and  his  eflForts  to  destroy  the  domestic  peace  and 
happiness  of  the  complainant,  his  wife,  as  well  as  defendant's 
general  bad  character. 

Third  exception  to  master's  report.  For  that  whereas  the 
master  reports  as  follows:  "The  third  exception  is  also  well 
taken,  inasmuch  as  it  alleges  cruel  treatment  by  defendant 
towards  complainant.  These  charges  are  immaterial  and  imper- 
tinent in  the  bill,  which  prays  a  decree  of  divorce  on  the  ground 
of  adultery,  and  should  be  expunged." 

And  the  complainant  insists  that  the  master's  report  is  con- 
trary both  to  law  and  equity,  forasmuch  as  the  acts  of  cruelty 
charged  in  complainant's  bill  of  complaint  are  not  immaterial 
and  impertinent,  but  that  said  charges  are  material  to  the  issue 
raised  in  complainant's  bill. 

Whereas,  the  said  ,  master  as  aforesaid,  has  not  reported 

properly,  or  in  accordance  with  the  terms  of  the  said  rule,  or 
with  the  principles  of  equity. 

In  which  said  several  matters  and  respects  this  exceptant 
prays  the  judgment  of  this  court. 

{Signature  of  solicitor  and  counsel.) 

Rule  for  hearing  upon  exceptions  to  master's  re- 
port.(a) 

{Title  of  cause.)  >  {Date.) 

It  is  ordered,  on  motion  of  ,  solicitor  and  of  counsel 

with  the  complainant,  that  this  cause  be  set  down  for  hearing 

(a)  The  exceptions  being  filed,  thev  next  ensuing  term  of  the  court.  Rule 
must  be  set  down  for  hearing  at  the       3.     Either  party,  upon  notice  to  the 


'exceptions  to  bill.  67 

upon  the  exceptions  filed  by  the  complainant  to  the  report  of 
,  one  of  the  masters  of  this  court,  bearing  date  on  the 
day  of  ,  on  the  first  day  of  the  next  stated  term  of 

this  court,  to  be  held  at  the  state-house,  in  the  city  of  Trenton, 

at  the  hour  of  ten  o'clock  in  the  forenoon  of  that  day,  or  as 

soon  as  counsel  can  be  heard  thereon. 

By  the  court.  Clerh. 

Notice  of  hearing  upon  exceptions.(a) 
{Title  of  cause.) 

Sir — Take  notice  that  the  above  cause  will  be  brought  to 
hearing  upon  the  exceptions  taken  by  the  complainant  to  the 
report  of  ,  one  of  the  masters  of  this  court,  and  bearing 

date  the  day  of  ,  eighteen  hundred  and  ,  on 

the  first  day  of  the  next  stated  term  of  said  court,  to  be  held  at 
the  State-house,  in  Trenton,  at  the  hour  of  ten  o'clock  in  the 
forenoon,  or  as  soon  thereafter  as  counsel  can  be  heard. 

Dated,  Solidtor  of  comjylainant. 

To  ,  Solicitor  of  defendant. 

other,  may  apply  to  the  court  for  a  ous  or   impertinent,  the  court,  upon 

hearing  at  an  earlier  time.     See  rule  defendant's    application,    will    make 

12.     A  notice  to  put  the  cause  on  the  order  that  the  same  be  expunged,  and 

calendar    should     be    furnished    the  that    the   defendant    be   allowed   his 

clerk,  and    notice  of  hearing   served  costs,  and  that  the  clerk  of  the  court 

on  the  solicitor  of  the  adverse  party,  strike  his  pen  through  the  objection- 

at  least  fifteen  days,  exclusive  of  Sun-  able  words,  setting  his  initials  against 

days,  before   such   intended   hearing.  the  parts  so  expunged.     Blake's  Ch. 

Rules  3,  11.  Pr.  302.    Sixty-six  exceptions  having 

(a)  Upon  arguing  the  exceptions,  been  taken  to  the  report  of  the  master, 

the   counsel   of  the   party   excepting  and  the  defendants  having  succeeded 

opens  and  replies,  and  no  evidence  is  as   to  sixty-four  of  those  exceptions, 

admitted  in  support  of  the  exceptions  and  the  complainant  only  as  to  two, 

but  what  was  laid  before  the  master  the  defendants  were  allowed  sixty-two 

upon  the  objections.     2  Mad.  Ch.  Pr.  sixty-sixths  of  their  costs  upon   the 

390.     If  the   Chancellor  is  satisfied  exceptions  to  the  report,  and  neither 

that   there  is   error   in   the   master's  party  was  awarded  costs  on  the  refer- 

report,  he  will  direct  the  master,  by  ence  to  the  master.  Mclntyre  v.  Union 

order,  to  review   his   report.     If  the  College,  6  Paige  254 ;  see  Sandford  v. 

master  reports  that  the  bill  is  scandal-  Clarke,  11  Stew.  Eq.  265. 


68  FORMS   OF   PLEADINGS. 

Order  confirming    master's    report    on    exceptions 
thereto,  (a) 

{Title  of  cause.) 
It  appearing  to  the  court  that,  by  an  order  bearing  date  on 
the  day  of  last  past,  it  was  ordered  that  the  excep- 

tions filed  by  the  complainant  to  the  master's  report,  on  excep- 
tions to  the  bill  in  above-stated  cause  be  withdrawn,  with  costs 
to  be  paid  by  the  complainant :   It  is,  on  this  day  of  , 

eighteen  hundred  and  ,  on  motion  of  ,  esquire,  of 

counsel  for  the  defendant,  ordered  that  the  said  master's  report 
be  ratified  and  confirmed.  And  it  is  further  ordered  that  the 
alleged  scandalous,  defamatory,  immaterial  and  impertinent 
matter  referred  to  in  the  said  master's  report  be  expunged 
according  to  said  report.  And  it  is  further  ordered  that  the 
said  pay  to  the  defendant  or  his  solicitor  the  costs  of  the 

said  exceptions  and  the  proceedings  thereon,  within  twenty  days 
after  service  of  a  copy  of  this  order  and  of  the  taxed  bill  of  costs 
on  her  or  her  solicitor. 

(Signature.) 


OF  OBTAINING  SECURITY  FOR   COSTS.(6) 

Order  for  security  for  costs. 

(Title  of  cause.)  >  .^    n 

^  ''  j  security  tor  costs. 

It  appearing  to  the  court  that  ,  the  complainant  in  the 

above-stated  cause,  resides  out  of  the  State  of  New  Jersey,  and 
in  the  State  of  New  York :    It  is  thereupon,  on  this  {date,)  on 

(a)  The   recital   of  deeds,   &c.,   in  Ball  &  Beatty  229.     Any  proceeding 

hoEC  verba,  in  a   bill,  is   impertinent,  in    the   court    may   be    referred    for 

according  to  Lord  Coventry's  oi-ders.  scandal   and   impertinence.      Erskine 

The  same  general  rule  as  to  the  ma-  v.   Garshore,  18  Vesey  114;  Price  v. 

teriality  of  the  matters  prevails  here  Shaw,  2   Coxe's  Cases  184.     Affidavit 

as   in  case  of  an   answer.     See  Hoff.  referred  for  impertinence.    Phillips  y. 

"Master     in     Chancery"     317.       An  Muilman,  3  Atk.  391. 
amended  bill,  repeating  all  the  allega-  (6)  If  the  complainant  resides  out 

tions  and  charges  of  the  original  bill,  of  the  state,  he  is  required,  before  the 

is   impertinent.      Willis   v.    Evans,    2  issuing  of  process  to  appear,  to  cause 


SECURITY   FOK   COSTS. 


69 


motion  of  ,  of  counsel  with  the  defendant,  ordered  that 

the  complainant  in  this  cause  do,  within  days  after  service 

upon  him  or  his  solicitor  of  notice  of  this  order,  give  security 
for  costs  in  this  cause,  according  to  law,  and  that  until  this  order 
be  complied  with  all  further  proceedings  in  the  cause  be  stayed. 
And  it  is  further  ordered  that  if  such  security  be  not  filed,  or 
the  deposit  in  lieu  thereof  made  within  the  time  above  limited, 
the  defendant  may  apply  to  dismiss  the  bill  in  this  cause. 


a  bond  to  be  executed  by  at  least  one 
sufficient  person,  being  a  freeholder 
and  resident  within  the  state,  to  the 
defendant,  in  the  penal  sum  of  $150, 
conditioned  to  prosecute  the  suit  with 
efifect,  and  to  pay  costs  to  the  defend- 
ant, if  he  shall  be  entitled  thereto  and 
have  the  same  filed  with  the  clerk,  or 
in  default  thereof,  the  complainant's 
solicitor,  who  shall  file  the  said  bill 
and  issue  process  thereon,  shall  be  re- 
sponsible to  pay  the  defendant  such 
costs  as  he  may  be  entitled  to  by  the 
order  of  the  court,  to  an  amount  not 
exceeding  the  penalty  of  the  bond, 
and  whether  the  bill  and  process  be 
signed  by  the  complainant  or  his 
solicitor,  then  the  said  suit  may  be 
stayed  till  the  bond  be  filed,  and  if  it 
be  not  filed  by  the  time  appointed  by 
the  court,  tlie  bill  shall  be  dismissed, 
with  costs ;  provided,  that  in  lieu  of 
such  bond  the  complainant  may  de- 
posit with  the  clerk  the  sum  of  §150 
in  money.  Pamph.  L.,  1892,  chap. 
CCXXXIX. 

The  defendant  is  not  bound  to 
accept  the  solicitor's  security,  under 
the  rule.  Long  v.  Tardy,  1  Johns. 
•Ch.  202.  Independent  of  the  statute, 
it  is  an  ancient  and  well-established 
■rule,  that  if  the  complainant  is  a  non- 
resident, the  court,  on  the  application 
•of  the  defendant,  will  order  him  to 
give  security  for  costs,  and  in  the 
meantime  will  direct  all  proceedings 
.to  be  stayed.     Newman  v.  Landrine,  1 


McCart.  291.  To  obtain  an  order  for 
this  purpose,  it  is  not  necessary  to  give 
notice  to  the  complainant.  A  plaintiflf 
cannot  be  compelled  to  give  security 
for  costs,  unless  he  himself  states  upon 
his  bill  that  he  is  a  non-resident,  or 
unless  the  fact  is  established  by  affi- 
davit. Dan.  Ch.  Pr.  29.  If  the  fact 
of  non-residence  appear  in  the  bill,  no 
affidavit  will  be  necessary.  Nor  is  it 
necessary  that  the  complainant  should 
reside  out  of  the  state  at  the  time  of 
filing  his  bill,  to  entitle  the  defendant 
to  the  order.  It  will  be  granted  if  the 
complainant  goes  abroad  to  reside 
after  the  commencement  of  the  suit. 
Newman  v.  Landrine,  supra;  Green  v. 
Charnock,  3  Bra.  C.  C.  371.  If,  after 
knowledge  of  the  non-residence,  de- 
fendant takes  any  step  in  the  cause 
before  applying  for  the  order,  he 
thereby  waives  security  for  costs. 
Ibid.  When  there  is  more  than  one 
complainant,  unless  all  are  non-resi- 
dents, security  for  costs  will  not  be 
required.  Jones  v.  Knauss,  6  Stew. 
Eq.  188 ;  Anonymous,  Pen.  886 ; 
Walker  v.  Easterly,  6  Ves.  612;  Win- 
throp  V.  Bay,  Dick.  282.  Infant  com- 
plainants residing  in  the  state  are  not 
required  to  give  security  for  costs. 
Cortheal  ads.  Moorehouse,  1  Zah.  335. 
But  where  an  infant  complainant, 
residing  out  of  the  state,  sues  by  a 
next  friend  residing  in  the  state,  the 
defendant,  by  the  statute,  is  entitled  to 
security  for  costs.     Ibid. ;  see  Kerr  v. 


70 


FORMS   OF   PLEADINGS. 


Bond  for  costs. (a)     Know  all  men  by  these  presents,  that 
we,  ,  of  the  city  of  ,  and  state  of  ,  and  ,. 

of  ,  in  the  county  of  ,  and  State  of  New  Jersey, 

are  held  and  firmly  bound  unto  ,  of  aforesaid,  in 

the  penal  sum  of  one  hundred  and  fifty  dollars,  lawful  money  of 
the  United  States  of  America,  to  be  paid  to  the  said  ,  or 

to  his  certain  attorney,  executors,  administrators  or  assigns ;  to 
which  payment  well  and  truly  to  be  made,  we  bind  ourselves 


Gillespie,  7  Beav.  269.  Where  the  de- 
fendant was  unable  to  find  who  or 
where  the  plaintiff  was,  or  his  place 
of  residence,  tlie  court  granted  a  rule 
that  tiie  plaintiff  file  security  for  costs. 
Mulford  V.  Geshiat,  1  Harr.  272 ; 
Bailey  v.  Gtmdry,  1  Keen  53.  It  has 
been  held  in  England  that  security 
cannot  be  required  of  an  oflScer  in  the 
army  or  navy,  or  a  consul.  Colebrook 
V.  Jonea,  Dick.  154 ;  Stanly  v.  Hume, 
1  Hogan  12.  But  where  it  appeared 
upon  the  bill  that  the  complainant 
was  an  ofiicer  of  the  army  out  of  the 
jurisdiction,  the  defendant  was  entitled 
to  the  usual  security  for  costs,  unless 
it  was  distinctly  stated  that  the  com- 
plainant was  on  actual  service.  That 
it  is  not  sufficient  to  state  that  the 
complainant  was  an  officer  of  a  par- 
ticular regiment,  and  residing  at  a 
particular  place  out  of  the  jurisdiction, 
although  tlie  regiment  might  in  fact 
be  stationed  at  that  place.  Lillie  v. 
Lillie,  2  3Iyl.  &  Keene  401.  The  day 
on  which  the  order  to  give  security 
for  costs  is  served  and  the  period  from 
thence  to  and  including  the  day  on 
which  such  security  is  given  is  not 
reckoned  in  the  computation  of  time 
allowed  a  defendant  to  plead,  answer 
or  demur.  1  Smith's  Ch.  559.  When 
an  order  of  course  has  been  obtained 
it  must  be  served  on  the  complainant 
or  his  solicitor.  The  security  is  given 
in  one  of  the  following  modes :  The 
complainant's    solicitor     prepares     a 


bond  in  the  required  form  and  lodges- 
it  in  the  clerk's  ofiice,  or  in  lieu  of 
giving  a  bond  may  deposit  with  the 
clerk  the  sum  required  by  the  statute, 
and  on  the  same  day  serves  notice 
thereof  upon  the  solicitor  of  the  de- 
fendant who  obtained  the  order,  and 
the  security  is  deemed  to  have  been 
given  on  the  day  the  security  is  filed 
or  deposited  The  complainant  must 
give  notice  of  the  filing  of  security. 
Southern  National  Bank  v.  Darling,  4 
Dick.  Ch.  Rep.  398. 

(a)  The  statute  directs  that  the 
security  for  costs  shall  be  in  the  form 
of  a  bond,  with  at  least  one  sufficient 
surety,  being  a  freeholder  and  resident 
within  the  state,  in  the  penalty  and 
conditioned  as  before  mentioned.  The 
bond  must  be  filed  with  the  clerk. 
The  affidavit  should  be  endorsed  upon 
or  written  under  the  bond.  The 
bond,  when  properly  filed,  will  operate- 
to  discharge  the  order  to  stay  pro- 
ceedings. The  defendant  may  except 
to  the  sufficiency  of  the  surety  by 
giving  notice  of  such  exception  to  the 
complainant's  solicitor.  Upon  the 
exception  being  brought  to  the  atten- 
tion of  the  court  on  motion,  if  the- 
surety  has  not  already  justified,  he 
will  be  required  so  to  do,  before  the 
order  to  stay  proceedings  is  discharged. 
1  Huff.  Ch.  Pr.  205.  It  is  too  late  to 
move  for  security  for  costs  after  the 
defendant  has  obtained  time  to  answer 
or  plead  or  demur.     Prior  v.  White, 


SECURITY   FOR   COSTS.  71 

and  our  and  each  of  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents.  Sealed  with 
our  seals,  and  dated  the  day  of  ,  eighteen  hundred 

and 

Whereas,  by  an  order  of  the  Court  of  Chancery  of  the  State 
of  New  Jersey,  bearing  date  the  day  of  last  past, 

made  in  a  suit  depending  in  said  court,  wherein  the  above- 
named  is  complainant,  and  the  above-named  is  de- 
fendant, it  was  ordered  that  the  said  should  give  security 
for  costs  in  the  said  cause  according  to  law,  as  by  such  order  will 
more  fully  appear.  Now,  the  condition  of  this  obligation  is 
such,  that  if  the  said  shall  prosecute  the  said  suit  with 
effect,  and  pay  costs  to  the  said  ,  if  he  shall  be  entitled 
thereto  in  the  above-mentioned  suit,  then  this  obligation  to  be 
void,  otherwise  to  be  and  remain  in  full  force  and  virtue. 

[L.  S.] 
[L.  8.] 

Sealed  and  delivered  in  the  presence  of — 

Affidavit  of  justification  by  surety  in  bonds  for 

eosts.(a) 

State  of  New  Jersey,    \ 
county  of  ,  i 

,  of  ,  in  the  county  and  state  aforesaid,  being 

duly  sworn  according  to  law,  deposes  and  says — That  he  is  a 

2  Moll.  361 ;  Goodrich  v.  Pendleton,  3  manner.     CUffe  v.  Wilkinson,  4  Sim. 

Johns    Ch.   520 ;   Lomj   v.  Tardy,    1  123.     No  cause   should   be   instantly 

Johns.  Ch.  202.    A  complainant,  suing  dismissed,   on    motion,   for    want    of 

as    executor    or    administrator,    and  security  for   costs.     A   rule  is   to   be 

residing  out  of  the  jurisdiction,  cannot  made  for    the   complainant    to  give 

be  compelled  to  give  security  for  costs.  security   within    a    reasonable    time, 

Cathcart    v.   Hewson,    1    Hayes   173  ;  according  to  the  circumstances  of  the 

Goodrich  v.  Pendleton,  supra.    A  com-  case,  and  if  he   fails   to  comply,  the 

plainant   in  a  cross-bill    will   not   be  cause  is  then   to   be   dismissed   abso- 

compelled  to  give  security  for  costs.  lutely.   Breeding  v.  Finley,!  Dana  A7 . 

Thornton  v.  Wilson,  1  Hogan  20.     A  (a)  The  surety  should  justify  by  an 

poor   relator   must  give  security  for  afiBdavit  that  he  is  worth  double  the 

costs.     Alt' y- Gen.   v.  Skinners'  Co.,  1  penalty  of  such  bond  over  and  above 

Coop.  P.  C.  5.     A  complainant  resid-  all  debts.     1  Turn.  &  Ven.  764.     The 

ing  out  of  the  jurisdiction  was  allowed  bond  applies  only  to  the  costs  of  the 

to  pay  £120  into  court,  in  lieu  of  giv-  defendant   applying   for  security.     1 

ing   security   for  costs   in   the   usual  Dan.  Ch.  Pr.  34. 


72  FORMS   OF   PLEADINGS. 

resident  and  freeholder  within  this  state,  and  that  he  is  worth 
the  sum  of  three  hundred  dollars  over  and  above  all  his  just 
debts  and  liabilities. 

Sworn  and  subscribed,  &c. 


OF  PROCEEDINGS  IN   FORMA   PAUPERIS.(a) 

Petition  of  complainant  for  the  assignment  of 
counsel. 

To  his  Honor,  ,  Chancellor  of  the  State  of  New  Jersey  : 

The  petition  of  ,  of  the  township  of  ,  in  the 

county  of  ,  and  State  of  New  Jersey,  respectfully  shows, 

that  your  petitioner  is  a  poor  person,  and  that  she  hath  cause  of 
suit,  in  order  to  obtain  a  divorce  from  her  husband,  , 

under  the  act  entitled  "An  act  concerning  divorces." 

Your  petitioner  therefore  prays  that  your  Honor  will  l)e 
pleased  to  assign,  at  your  Honor's  discretion,  to  your  petitioner, 
a  solicitor  and  counsel,  learned  in  the  law,  to  prosecute  the  said 

cause.     And  your  petitioner  will  ever  pray,  &c. 

{Signature.) 
Dated, 

Verification  of  petition. (6)     State  of  New  Jersey,  ss. — 
,  the  above-named  petitioner,  being  duly  sworn  according 
to  law,  upon  her  oath  saith — That  she  is  not  worth  one  hundred 
dollars  clear  estate. 


Sworn  and  subscribed,  &c. 


{Signature.) 


(a)  The  provisions  of  the  statute  on  Newland  400;  see  Beames  on  Costs,  pp. 

this  subject  are  only  applicable  to  a  113,  11(5;  Beames'  Orders,  p.  44.     In 

pauper  complainant.   Bev.,  "Practice,"  New  Jersey  it  has  been  held  that  a 

§  307,  et  seq.     In  England  this  privi-  defendant  may  appear  and  defend  as 

lege  was   given   in   chancery  by  the  a  poor  person.     Fickle  v.  Pickle,  July, 

humanity  of  the  court,  not  as  at  law,  1823,  Chancery. 

under    a    legislative    enactment.     It  (6)    The   affidavit   to   the   petition 

there  extends  to  defendants  as  well  as  must  be  made  by  the  party  herself, 

to  complainants,  though  the  statutes  Wilkinson   v.  Belsher,  2   Bi-o.   C.  B. 

confine  the  right  to  complainants.     1  272. 


IN   FORMA   PAUPERIS.  73 

Petition  of  defendant  for  leave  to  defend  in  forma 
pauperis.     The  humble  petition  of  ,  one  of  the  defend- 

ants in  the  above  suit,  shows  that  your  petitioner  has  been 
served  with  subpoena  in  this  cause ;  that  she  is  a  poor  person, 
and  that  she  is  not  worth  one  hundred  dollars  clear  estate ;  and 
by  reason  of  her  poverty  is  unable  to  make  defence  hereto,  if 
not  permitted  to  defend  in  forma  pauperis. 

Your  petitioner  therefore  prays  that  she  may  be  permitted  to 

defend  this  suit  in  forma  pauperis,  and  that  counsel  and  solicitor 

may  be  assigned  her  for  that  purpose. 

{Signature.) 
Dated, 

{Add  verification.) 

Order  assigning  counsel  for  complainant. (a) 

{Title  of  cause.)  >      On  petition,  &c. 

Upon  reading  and  filing  the  petition  of  ,  the  above- 

named  petitioner,  and  the  affidavits  thereto  annexed :  It  is,  on 
this  day  of  ,  A.  D.  ,  ordered,  that  ,  one 

of  the  solicitors  of  this  court,  be  and  he  is  hereby  assigned  as 
the  solicitor  and  counsel  of  the  said  ,  to  prosecute  the 

above  cause. 

(a)  After  answer,  an  order  assigning  Orders  216.     The  following  cases  are 

counsel  cannot  be  made  on  an  ex  parte  cited    to  show   under   what    circum- 

application ;  the  defendant  is  entitled  stances  allowances   have   been   made 

to  notice.     Isnard  v.  Cazeaux,  1  Paige  to  paupers  out  of  the  fund   in  court 

R.  40.     The  privilege  of  thus  suing  in  litigation,  to  enable  them  to  carry 

or  defending,  exempts  the  party  from  on  the  proceedings,  but  the  principle 

paying  fees  for  writs  or  orders,  or  any  of  the  cases  is  said  to  be  very  ques- 

fee,  profit  or  reward  to  any  counselor  tionable :    Perishall   v.  Squire,   Dick. 

or  solicitor  for  the  transaction  of  the  31 ;  Hinckley  v.  Appleby,  cited  2  Cox 

business.      Beames'   Orders  155,   234.  409;   Jones   v.  Coxeter,   2   Atk.   309 

The  clerk  is  authorized,  however,  to  Dickinson    v.    Mavie,   2    Dick.    582 

charge  the  solicitor  for  the  labor  of  Tillotson  v.  Hargreaves,  4  3fad.  172 

writing  in  drawing  orders,  &c.   1  Hoff.  Peck  v.  Beechey,  2  Sim.  40,  disapprov- 

Ch.   Pr.  70.     A   pauper   party   may  ing  Cockerill  v.  Barber,  cited  4  Mad. 

be  dispaupered  for  giving  the  fees  or  172 ;  but  see  contra,  Johnston  v.  Todd, 

rewards  which  he  is  exempted  from  3  Bear.  218.   An  executor  or  adminis- 

paying,  or   for  contracting  to  do  so.  trator  cannot  sue  in  forma  pauperis. 

Lord    Clarendon's     Orders;    Beames'  Paradice  v.  Sheppard,  Dick.  13Q. 


74 


FORMS   OF   PLEADINGS. 


Order  assigning  counsel  for  defendant. 

{Title  of  cause.)  >       On  petition,  &c. 


Upon  reading  and  filing  the  petition  of  ,  the  above- 

named  petitioner,  and  the  affidavit  thereto  annexed :    It  is,  on 
this  day  of  ,  eighteen  hundred  and  ,  ordered, 

that  ,  one  of  the  solicitors  of  this  court,  be  and   he  is 

hereby  assigned  to  defend  the  said  cause  for  the  said  petitioner 
in  forma  pauperis. 


OF  THE   DEFENCE  TO   A   SUIT. 

Petition  for  the  production  of  papers.(a) 

In  Chancery  of  New  Jersey. 
To  his  Honor,  ,  Chancellor  of  the  State  of  New  Jersey  : 

The  petition  of  shows  that  ,  of  ,  has  filed  his 

bill  of  complaint  in  this  court  against  your  petitioner  and  others, 


(a)  If  either  party,  complainant  or 
defendant,  has  a  direct  and  immediate 
interest  in  deeds  or  documents  in  the 
possession  or  under  the  control  of  the 
other,  containing  evidence  relating  to 
the  merits  of  the  action  or  proceeding, 
or  of  the  defence  thereto,  the  court 
may,  in  its  discretion,  grant  an  order 
requiring  either  party  to  give  to  the 
other,  within  a  specified  time  and 
under  such  terms  as  may  be  imposed, 
an  inspection  and  copy,  or  permission 
to  take  a  copy,  of  any  such  books, 
papers  or  documents.  Rule  31 ;  see 
Rev.,  "Fractice,"  ^  157.  It  is  a  matter 
of  course  to  allow  the  complainant  to 
inspect  the  books  and  papers  of  the 
defendant  referred  to  in  his  answer, 
and  thus  made  a  part  thereof.  Eager 
V.  Wiswall,  2  Paige  369;  2  Fovler's 
Ex.  Pr.  54.  They  must  be  described 
with  reasonable  certainty  in  the  an- 


swer, or  in  the  schedule  annexed  to  it, 
so  as  to  be  considered,  by  the  refer- 
ence, as  incorporated  in  the  answer, 
and  they  must  be  admitted  by  the 
answer  to  be  in  the  defendant's  posses- 
sion or  power ;  and  it  must  also 
appear  that  the  plaintiff  has  an  inter- 
est in  the  production  of  the  papers 
sought  after.  Watson  v.  Renwick,  4 
Johns.  Ch.  383.  It  is  laid  down  as  a 
rule  that  if  the  applicant  has  what  is 
termed  a  "  common  interest "  in  the 
instrument  with  the  other  party,  he  is 
entitled  to  the  production.  Burton  v. 
Neville,  2  Cox  S.  C.  2-42.  In  ordinary 
cases  the  defendant  is  not  entitled,  by 
motion,  to  call  upon  the  complainant 
for  the  production  of  his  books  or 
documentary  evidence  in  his  posses- 
sion, before  answer,  to  enable  such  de- 
fendant to  make  his  defence.  Kelly 
V.  Eckford,  5  Paige  548.     Where  the- 


PRODUCTION   OF   PAPERS,  &C. 


75 


for  the  foreclosure  of  a  certain  mortgage  given  by  your  petitioner 
and  his  wife  on  certain  premises  in  said  bill  described,  which 
said  mortgage  bears  date  on  the  day  of  ,  eighteen,  &c. 

That  it  is  alleged  in  said  bill  that  the  bond  given  by  your 
petitioner,  secured  by  the  said  mortgage,  and  the  said  mortgage, 
are  in  his  possession,  and  that  the  same  are  ready  to  be  pro- 
duced, as  the  court  shall  direct. 

And  your  petition^  further  shows,  that  the  said  bond  and 
mortgage  contain  evidence  relating  to  the  merits  of  his  defence 
to  said  suit.  And  your  petitioner  alleges  for  cause  why  the 
prayer  of  this  his  petition  should  be  granted,  that  as  your  peti- 
tioner verily  believes  the  said  bond  and  mortgage  have  been 
altered  in  several  material  parts,  and  erasures  and  interlineations 
made  therein  since  the  same  were  executed,  and  particularly  that 
the  name  of  the  said  has  been  substituted  as  mortgagee 

for  the  name  of 


defendant  asked  for  the  production  of 
documents  in  the  hands  of  the  com- 
plainants, to  enable  him  to  answer  the 
bill,  it  was  denied.  Pevfold  v.  Nunn, 
5  Sim.  Rep.  409,  disapproving  the 
decision  in  Princess  of  Wales  v.  The 
Earl  of  Liverpool,  1  Sivans.  Rep.  114. 
The  defendant  should  file  a  cross-bill 
against  the  complainant  for  the  dis- 
covery of  the  documents,  if  he  requires 
them  for  the  purpose  of  his  defence  in 
the  suit.  Pen/old  v.  Nunv,  supra; 
Lupton  V.  Pearsall,  2  Johns.  Ch.  429 ; 
Hare  v.  Collins,  1  Hogan  193.  The 
principle  of  requiring  defendant  to 
file  a  cross-bill  is  not  applicable  to  the 
case  of  partnership  books  and  papers 
in  the  hands  of  one  of  the  partners  or 
his  assignees  or  representatives,  where 
both  parties  have  an  equal  right  to 
the  examination  and  inspection  thereof 
for  the  purposes  of  the  suit.  In  such 
cases,  upon  the  application  of  either 
party,  and  at  any  stage  of  the  suit,  an 
order  may  be  made  upon  the  other  to 
deposit  any  of  the  partnership  books 


and  papers  in  the  hands  of  an  officer 
of  the  court  for  examination  and  in- 
spection by  the  adverse  party.  Kelly 
v.  Eckford,  5  Paige  549;  Maund  v. 
Allies,  4  Mylne  &  C.  503.  A  defend- 
ant who,  in  his  answer,  refers  to  a 
deed  in  the  words,  "  as  by  the  said  in- 
denture, when  produced,  will  appear," 
must  produce  it  for  the  inspection,  &c., 
of  the  complainant,  although  he  does 
not  "  crave  leave  to  refer  to  it."  Wel- 
ford  v.  Stninthorpe,  2  Beav.  587.  Where 
a  defendant,  by  his  answer,  admits  the 
possession  of  books  and  papers  relat- 
ing to  the  matters  in  question,  but 
states  that  they  are  in  constant  use  in 
his  business  and  necessary  for  that 
purpose,  the  court  only  orders,  in  the 
first  instance,  that  they  shall  be  pro- 
duced to  the  plaintiff  at  the  place  of 
business  at  which  they  are  stated  to  be 
in  use,  leaving  it  open  to  the  plaintiff, 
if  he  does  not  obtain  a  satisfactory  in- 
spection of  them  there,  to  apply  to  the- 
court  for  a  further  order.  Grane  v.. 
Cooper,  4  Mylne  &  C.  263. 


76  FORMS   OF    PLEADINGS. 

And  your  petitioner  further  shows,  that  he  has  frequently, 
since  the  commencement  of  this  suit,  requested  the  said  to 

permit  your  petitioner  to  inspect  and  examine  the  said  bond  and 
mortgage,  and  that  the  said  has  always  refused  to  comply 

with  such  requests.  And  he  further  shows,  that  under  the  cir- 
cumstances of  the  case,  such  examination  and  inspection  ought 
to  be  permitted  him  before  he  is  compelled  to  answer  said  bill. 

Your  petitioner  therefore  prays  that  an  order  may  be  made 
by  this  court,  directing  the  said  to  produce  the  said  bond 

and  mortgage  to  one  of  the  masters  of  this  court,  and  leave  the 
same  with  him  for  the  inspection  and  examination  of  your  peti- 
tioner for  such  reasonable  time  as  your  Honor  may  deem  proper, 
or  that  your  Honor  may  make  such  other  order  in  the  premises 
as  may  be  agreeable  to  equity.  And  your  petitioner  will  ever 
pray,  &c. 

Affidavit  to  petition.(a)    New  Jersey,  to  wit —  ,  the 

petitioner  named  in  the  foregoing  petition,  being  duly  sworn,  on 
his  oath  doth  declare  that  the  matters  and  things  set  forth  in  the 
foregoing  petition  are  true  of  his  own  knowledge,  except  as  to 
the  matters  therein  stated  to  be  on  his  information  and  belief, 
and  as  to  those  matters,  he  believes  them  to  be  true. 

{SigncUure.) 

(Jurat.) 

Notice  of  motion  on  foregoing  petition. 

{Title  of  cause.) 
To  ,  complainant  {or  defendant :) 

Please  take  notice  that  I  shall  apply  to  the  Chancellor  of  this 
state,  at  the  state- house,  in  Trenton,  on  ,  the  day  of 

next,  {or  "  instant,"  as  the  case  may  be,)  at  ten  o'clock  in 
the  forenoon,  or  as  soon  thereafter  as  counsel  can  be  heard 
thereon,  upon  a  petition  for  an  order  directing  and  commanding 
you  to  produce,  for  the  inspection  and  examination  of  the 

(a)  The  petition  must  be  verified  opposition  to  the  application  may  be 
by  the  oath  of  the  party,  or  of  his  read  without  notice.  Rules  31,  32; 
solicitor  in  the  matter.     Affidavits  in       and  see  Rev.,  ''Practice,"  ^  158. 


PRODUCTION   OF   PAPERS,  AC  77 

in  said  cause,  the  bond  and  mortgage  mentioned  and  set  forth  in 
said  bill  and  also  directing  you  to  pay  the  costs  of  this  applica- 
tion. Solicitor  of  petitioner. 
Dated, 

Affidavit  of  service  of  notice. 

New  Jersey,  ss. —  ,  of  full  age,  being  duly  sworn,  on 

his  oath  ^aith — That  he  served  a  notice,  of  which  the  within 
{or  "  foregoing  ")  is  a  true  copy,  on  ,  by  delivering  the 

same  to  him,  personally,  on  the  day  of  ,  instant,  and 

informing  him  of  the  object  of  said  notice.  [Signature.) 

(Jurat.) 

Order  on  complainant  to  produce  paper. 
(Title  of  cause.) 

This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  petitioner,  and  on  reading  and  filing  the  petition  of  the 
defendant,  ,  praying  for  the  production  and  inspection 

off  "the  bond  and  mortgage  mentioned  in  the  complainant's 
bill  as  having  been  executed  by  the  said  to  the  said  com- 

plainant, and  dated  the  day  of  ,  and  which  is  ad- 

mitted by  the  complainant  in  his  bill  to  be  in  his  possession, 
before  he  shall  be  compelled  to  answer  said  bill ;  and  on  hear- 
ing, ,  esquire,  in  support  of  said  petition,  and  , 
esquire,  in  opposition  thereto : "  It  is,  on  this  day  of  , 
ordered,  that  the  complainant  do,  within  days  from  the 
date  of  service  upon  him  of  a  copy  of  this  order,  produce  the 
said  bond  and  mortgage  to  ,  esquire,  one  of  the  masters  of 
this  court,  and  leave  the  same  with  him  for  the  inspection  of  the 
said  defendant,  for  the  space  of  days,  and  that  the  said 
defendant  be  permitted  to  examine  and  inspect  the  same,  and 
that  he  have  days  to  answer  said  bill  after  the  said  bond 
and  mortgage  shall  have  been  so  produced. 

Order  on  defendant  to  produce  paper.    (As  in  above 
form  to  t,  and  after  mentioning  the  papers  to  be  produced,  then. 
It  is,  on  this,  &c.,  ordered,  that  the  defendant  do,  within 
days  after  service  upon  him  of  a  copy  of  this  order,  leave  with 


78 


FORMS   OF   PLEADINGS. 


,  one  of  the  masters  of  this  court,  at  his  office,  in  ,  the 

several  books  of  account,  accounts,  letters  and  papers  relating  to 
the  matters  in  controversy  in  this  cause  admitted  by  his  answer 
to  be  in  his  possession,  and  the  complainant,  his  solicitor,  agent 
or  counssl,  is  to  be  at  liberty  to  inspect  and  peruse  the  same, 
and  to  take  copies  thereof  or  extracts  therefrom  as  he  may  be 
advised,  at  his  own  expense;  but  the  said  defendant  is  to  be  at 
liberty  to  seal,  upon  oath,  such  parts  of  the  said  several  books, 
&c.,  as  do  not  in  any  manner  relate  to  the  matters  in  controversy 
in  this  cause. 

Petition  by  complainant    for  production  and  in- 
spection of  papers.(a) 

{Title  and  address.) 

The  petition  of  ,  the  above-named  complainant,  respect- 

fully shows,  that  the  answer  of  the  defendant,  ,  has  been 

put  in  in  this  cause,  and  that  a  replication  thereto  has  been  filed, 


(a)  The  forms  given  on  pages  74, 
&c.,  are  applicable  to  the  case  of  a 
defendant  seeking  discovery  of  evi- 
dence relating  to  his  defence  to  the 
suit;  and  where  the  documents  in 
question  are  contested  as  false  and 
fraudulent,  in  accordance  with  the 
practice  in  a  court  of  equity,  they 
should  be  ordered  to  be  brought  into 
court  for  inspection.  Apthorpe  v.  Corn- 
stock,  Hopk.  163,  affirmed,  8  Cowen 
386  ;  Chevs  y.  Driver,  Coxe  109.  But 
only  where  there  is  reason  to  suppose 
the  deed  will  not  be  forthcoming. 
Beckford  v.  Wildman,  16  Fes.  438. 
The  above  forms  are  applicable  to  the 
case  of  a  complainant  who  is  entitled 
to  the  benefit  of  all  documentary  or 
written  evidence  in  the  defendant's 
possession  which  will  aid  him  in 
proving  the  allegations  and  charges 
in  the  bill.  An  admission  in  the 
answer  that  the  defendant  is  in  pos- 
session of  papers  and  documents,  only 
binds  the  party  to  produce  the  paper, 


if  the  court  shall  think  it  necessary, 
and  as  documents  and  other  writings 
are  themselves  the  proper  evidence  of 
their  own  contents,  the  complainant 
is  entitled  to  have  them  produced,  in 
order  tiiat  he  may  avail  himself  of 
their  evidence.  Upon  the  presenta- 
tion of  a  petition  for  the  purpose,  the 
court  will  enter  fully  into  the  merits 
of  the  question  as  to  the  right  of  the 
complainant  to  the  inspection,  and 
thus  secure  the  rights  of  the  com- 
plainant without  violating  the  rights 
of  the  defendant.  1  Barb.  Ch.  Pr. 
229 ;  Atkyns  v.  Wryght,  14  Ves.  211 ; 
Stanhope  v.  Roberts,  2  Atk.  214.  The 
petition  should  state  that  the  book, 
paper  or  document  of  which  a  dis- 
covery is  sought,  contains  evidence 
relating  to  the  merits  of  the  action  or 
proceeding  or  of  the  defence,  and 
should  also  state  some  facts  or  circum- 
stances from  which  the  court  can 
judge  of  the  materiality  of  the  evi- 
dence and  the  propriety  of  ordering  a 


PRODUCTION   OF   PAPERS,  &C.  79 

but  that  no  testimony  has  been  taken  in  the  cause,  nor  has  the 
same  been  noticed  for  hearing.  That  by  the  answer  of  the  said 
defendant,  he  admits  that  he  is  in  possession  of  divers  books, 
deeds,  letters,  accounts  and  other  papers  relating  to  the  matters 
at  issue  in  this  cause. 

And  your  petitioner  further  shows,  that  he  has  a  direct  and 
immediate  interest  in  the  said  books,  deeds  and  other  papers,  and 
that  an  inspection  thereof  is  necessary  to  enable  him  to  examine 
"witnesses  in  this  cause,  and  to  prepare  such  cause  for  hearing. 

Your  petitioner  therefore  prays,  that  the  said  defendant  may 
be  ordered  to  produce  to,  and  leave  with,  one  of  the  masters  of 
this  court,  the  books,  deeds  and  other  papers  above  mentioned  ; 
and  that  your  petitioner,  his  agent,  solicitor  or  other  counsel, 
may  be  at  liberty  to  inspect  and  peruse  the  same,  and  take  copies 
thereof,  or  extracts  therefrom,  as  he  may  be  advised,  or  that 
your  Honor  may  make  such  order  in  the  premises  as  shall  be 
agreeable  to  equity.     And  your  petitioner  will  ever  pray,  &c. 

(Signature  of  solicitor  and  counsel.) 

(Add  verification.) 

discovery.  Condit  v.  Wood,  1  Dutch.  Farquharson  v.  Balfour,  Turn.  <£•  R. 
319;  Anon.,  Pen.  *513;  2  Fow.  Ex.  190;  Hornby  v.  Pemberton,  Mos.  57; 
Pr.  46,  50 ;  Watson  v.  Rtnuick,  4  Eager  v.  Wiswall,  2  Paicje  369.  It  was 
Johns.  Ch.  384.  The  court  in  exer-  held  that  in  a  suit  to  set  aside  a  con- 
cising  this  control  over  papers  will  veyance  on  the  ground  of  fraud,  the 
merely  grant  inspection  and  examina-  court  will  not,  on  motion,  order  a  pro- 
tion  by  the  party  and  his  witness,  duction  of  the  defendant's  purchase- 
either  in  open  court  or  before  an  deed,  in  which  complainant  had  no 
•  officer  of  the  court,  or  in  the  presence  interest,  except  as  it  was  the  defend- 
of  the  party  producing  them  or  his  ant's  evidence  of  title.  Tyler  v. 
attorney,  and  will  not  take  them  from  Drayton,  2  Sim.  &  Stu.  309  The 
the  latter  and  deliver  them  into  the  mere  circumstance  of  a  defendant  in- 
possession  of  the  other  side.  Hilyard  corporating  a  deed  in  his  answer  is 
V.  Harrison,  8  Vr.  170.  It  is  laid  not  a  ground  for  compelling  its  pro- 
down  as  a  rule,  that  if  the  applicant  duction,  if  in  other  respects  such  pro- 
has  what  is  termed  a  common  in-  duction  would  be  inequitable  Sparke 
terest  in  the  instrument  with  the  v.  Montrioxi,  1  You.  &  C.  (Ex.)  103.  A 
other  party,  he  is  entitled  to  the  pro-  document  which  is  stated  in  the  ))ill, 
duction.  Sparke  v.  Montriou,  infra.  and  which  the  answer  admits  and 
Papers  belonging  to  a  defendant  are  refers  to,  cannot  be  read  from  the  bill 
in  his  possession,  custody  or  power,  at  the  hearin?,  but  must  be  produced, 
.although  they  be  in  a  foreign  country.  Cox  v.  AlUngham,  3  Jac.  339. 


80 


FORMS   OF   PLEADINGS. 


Order  for  production  of  papers  on  foregoing  peti- 

tion.(a) 

{Title  of  cause.) 

{Proceed  as  in  first  form  on  page  17  to  the  loord  "defendant," 
and  add,  "complainant  in  this  cause  duly  verified."  And  on 
reading  and  filing  due  proof  of  the  service  of  notice  of  the  motion :) 
It  is,  on  this,  &c.,  on  motion  of  ,  of  counsel  with  said  com- 

plainant, and  on  hearing  ,  of  counsel  with  the  defendant, 

,  in  opposition  thereto,  {or,  "and  no  one  appearing  to 
oppose,")  ordered,  {conclude  as  in  second  form  on  page  77.) 


OF  ORDERS  TO  ANSWER. 

Order  to  take  answer  without  oath.(6) 

{Title  of  cause.) 
This  matter  being  opened  to  the  court,  &c.,  and  on  reading  and 
filing  the  consent,  in  writing,  of  ,  solicitor  of  the  complain- 


(a)  Under  an  order  for  inspection 
the  examination  may  be  conducted 
without  the  presence  of  the  defendant 
or  his  solicitor.  The  papers  must  be 
delivered  into  the  possession  of  the 
officer  01  the  court,  to  be  open  to  the 
view  of  the  complainant,  on  notice  of 
inspection  given  to  the  opposite  party. 
1  Barb.  Ch.  Pr.  235 ;  Hoff.  Off.  Mast. 
12.  If  books  are  produced  before  the 
master  with  portions  sealed  up,  the 
party's  oath  of  their  not  relating  to 
the  matters  in  question  must  be  taken 
in  the  first  instance  as  sufficient.  But 
if  the  adverse  party  can  show  any  fair 
ground  for  supposing  any  part  has 
been  sealed  which  is  material,  whether 
designedly  or  not,  he  may  require  it  to 
be  opened.  Hoff.  Off.  Mast.  13.  In 
some  cases,  the  party  will  be  required 
to  furnish  copies  of  books,  &c ,  under 
oath.  Hugrj  v.  Hufty,  June,  1877. 
Upon   the  production  of  the  papers, 


&c.,  being  ordered,  the  practice  is  to 
serve  a  copy  of  the  order  upon  the 
party  defendant  or  his  solicitor,  and 
if  the  party  neglect  or  refuse  to  com- 
ply with  its  directions,  to  move  upon 
affidavit  for  an  order  to  show  cause 
why  an  attachment  should  not  issue 
against  him,  which  order  should  be 
served  personally,  if  practicable.  If 
the  party  persists  in  his  contempt, 
this  may  be  followed  by  a  commitment 
and  sequestration.  Hoff.  Off.  Mast.  JO. 
(6)  The  order  for  this  purpose  should 
be  applied  for  by  the  defendant  on 
filing  the  written  consent  of  the  com- 
plainant's solicitor.  If  applied  for  on 
the  part  of  the  defendant,  it  cannot  be 
obtained  without  such  consent.  But 
when  it  is  applied  for  by  the  com- 
plainant, the  defendant's  consent  is 
not  required.  1  Barb.  Ch.  Pr.  142,, 
and  case)^  cited. 


OF   0RDEE8   TO  ANSWER. 


81 


ant  to  this  order :    It  is,  on  this,  &c.,  on  motion  of  ,  of 

counsel  with  the  defendant,  ,  ordered,  that  the  answer  of 

the  defendant,  ,  to  the  bill  in  this  cause,  be  put  in  without 

oath. 

Order  for  time  to  answer. (a)    This  matter  being  opened 
to  the  court  by  ,  of  counsel  for  the  defendant,  (*),. 

and  on  good  cause  shown  :    It  is,  on  this,  &c.,  ordered,  on  motion 
as  aforesaid,  that  the  said  defendant,  ,  have  days  to 

file  his  answer  to  the  complainant's  bill  of  complaint,  from  and 
after  the  date  of  this  order. 


(a)  A  motion  for  an  order  for  time 
to  answer  is  strictly  a  special  motion, 
and  regularly  should  be  heard  only 
upon  notice,  and  be  sustained  by  affi- 
davits or  other  proof.  In  practice, 
however,  as  a  matter  of  convenience, 
it  is  constantly  granted  without  notice, 
and  upon  the  mere  allegation  of  coun- 
sel, and  must  then  be  regarded  as  a 
motion  of  course,  and  considered  as 
granted  at  the  peril  of  the  applicant. 
If,  without  notice  of  such  order,  the 
complainant  proceeds  with  his  cause, 
he  is  regular  in  so  doing,  and  though 
the  proceedings  be  afterwards  set 
aside,  he  is  entitled  to  his  costs. 
Emery  v.  Downing,  2  Beas.  61.  A 
decree  pro  confesso,  signed  after  the 
time  for  answering  has  expired,  is 
regular,  though  an  order  for  further 
time  to  answer  be  signed  and  filed  on 
the  same  day  with  the  signing  of  the 
decree.  Ibid.  Such  decree  regularly 
taken  will  only  be  opened  on  appli- 
cation by  motion  or  petition,  upon 
notice  to  the  complainant,  and  upon 
showing  that  defendant's  answer  con- 
tains some  valid  ground  of  defence. 
Ibid.  A  notice  of  an  application  for 
time  to  answer,  and  an  affidavit  filed 
in  support  of  it,  prevent  all  further 
proceedings  by  the  complainant,  until 
the  notice  is  regularly  disposed  of  by 


the  court.  Ormsby  v.  Palmer,  1  Hogan 
191.  An  order  for  time  to  answer, 
unless  drawn  up  and  served,  will  not 
stop  an  attachment  for  want  of  an 
answer.  Gaylor  v.  Fitz-John,  1  Sim. 
386.  The  defendant  has  the  whole  of 
the  last  day  specified  in  the  order  to 
answer,  in  which  to  file  his  answer. 
Hozie  V.  Scott,  Clarke  457.  It  was 
held  that  a  married  woman  answering 
separately  under  an  order  had  the 
full  time  from  the  date  of  the  order  to 
do  so.  Jackson  v.  Hawarth,  1  S.  &  S. 
161.  Under  an  order  for  time  to 
answer,  (not  to  answer,  plead  or 
demur,)  a  defendant  may  file  a  sworn 
plea  to  complainant's  bill.  Stokes  v. 
Dee,  2  Hogan  47.  And  under  an 
order  for  time  to  plead,  answer  or 
demur,  leave  was  given  to  defendant 
to  file  a  general  demurrer.  Atl'y- 
Gen'l  V.  Carlisle,  2  Sim.  427.  If  a 
demurrer  shall  have  been  overruled 
as  frivolous,  no  order  extending  the 
time  to  answer  will  be  made  unless, 
upon  full  examination  of  the  circum- 
stances of  the  case,  it  shall  be  made  to 
appear  to  the  Chancellor  that  evident 
injustice  would  be  done  without  such 
extension,  and  then  only  such  exten- 
sion will  be  granted  as  may  be  abso- 
lutely necessary  with  proper  diligence 
to  prepare  the  answer.     Rev.,  "  Chan- 


82  FORMS   OF   PLEADINGS. 

Petition  of  wife  for  leave  to  answer  separately 
from  her  husband. (a)    The  petition  of  the  defendant,  , 

respectfully  showeth,  that  the  complainant  in  this  suit  has  filed 
his  bill  against  your  petitioner  and  her  said  husband,  praying 
{insert  prayer  of  bill;)  that  your  petitioner  claims  as  a  defendant 
in  said  suit  in  opposition  to  her  husband ;  [or,  "  that  the  said 
bill  is  filed  in  respect  to  your  petitioner's  separate  estate,"  or  as 
the  case  may  be.)  Your  petitioner  therefore  prays  that  she  may 
be  authorized,  by  an  order  of  this  court,  to  put  in  her  answer  to 

the  said  bill  without  her  said  husband. 

(Signature.) 

(Signature  of  counsel.) 

Another  form  of  petition.    That  on  or  about  the 
day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  ,  one  filed  his  bill  of  complaint  in  this 

honorable  court  against  your  petitioner  and  her  said  husband, 
,  and  ,  trustee  of  your  petitioner,  praying  to  be 

relieved  touching  the  matters  therein  contained. 

eery,"  I  26.  A  defendant  who  had  (a)  A  wife  cannot  answer  separately 
taken  tliree  orders  for  time  to  answer,  from  her  husband,  withont  leave  of 
and  then  pleaded,  refused  further  time  the  court.  Bohhins  v.  Abrahams,  1 
on  the  plea  being  overruled.  Mack-  Hal.  Ch.  16.  Leave  to  answer  sepa- 
worth  V.  Marshall,  3  Sim.  370.  Tak-  ratelj'  granted  on  petition  of  the  wife, 
ing  an  order  for  time  to  answer  pre-  and  upon  notice  to  the  complainant, 
eludes  motion  for  security  for  costs  Id.  51 ;  see  Gary  v.  Wittingham,  1 
against  plaintiff  abroad.  Prior  v.  Sim.  &  Stu.)  63;  Story^s  Eq.  PL,  ^  71. 
White,  2  Moll.  361.  When  a  plaintiff  If  her  separate  answer  is  put  in  with- 
amends  his  bill,  the  defendant  is  enti-  out  such  an  order,  it  may  be  sup- 
tied  to  an  order  for  time  to  answer,  pressed.  Id.  16  ;  Perrine  v.  Swaine,  1 
even  though  the  plaintiff  should  John.  Ch.  Bep.  24.  A  married  woman 
require  no  answer,  and  the  amend-  who  has  obtained  an  order  to  answer 
ments  should  be  such  as  to  make  no  separately  may  be  proceeded  against 
new  answer  necessary.  Kelsham  v.  for  contempt  for  not  answering  pursu- 
Crowther,  2  L.  J.  Ch.  85.  When  a  ant  to  the  order.  Powell  v.  Prentice, 
party  is  in  contempt  he  may,  notwith-  Bidg.  P.  C.  258.  An  order  for  the 
standing,  obtain  time  to  answer,  and  wife  to  answer  separately  may  be 
an  order  on  the  plaintiff  to  stay  the  applied  for  either  by  the  wife  her- 
entry  of  further  process  in  the  mean-  self,  or  by  the  complainant,  or  by 
time;  but  he  must  pay  the  costs  of  the  husband.  See  1  Barb.  Ch.  Pr. 
the  motion.  Cooke  v.  De  Montmorency,  152. 
1  Hogan  181. 


OF   ORDERS   TO   ANSWER.  83 

And  your  petitioner  further  shows,  that  there  are  certain 
matters  of  defence  which  it  is  necessary  should  be  stated  and 
shown  to  this  honorable  court,  and  which,  from  the  nature  and 
circumstances  of  the  case,  cannot  properly  be  alleged  by  your 
petitioner,  jointly  with  her  said  husband,  and  which  oblige  your 
petitioner  to  apply  to  this  honorable  court  for  leave  to  answer 
the  said  bill  of  complaint  separately,  and  without  being  joined 
in  the  same  with  her  said  husband. 

And  your  petitioner,  in  explanation  of  the  nature  and  circum- 
stances of  the  case,  which  oblige  her  to  make  such  application 
as  aforesaid,  further  shows,  that  on  the  day  of  , 

eighteen  hundred  and  ,  and  on  other  days  and  times  pre- 

vious thereto,  the  said  ,  then  being  in  solvent  circumstances 

and  out  of  debt,  and  being  desirous  of  securing  to  his  wife  a 
comfortable  maintenance  during  her  life,  purchased  the  several 
tracts  of  land  and  real  estate  in  the  said  bill  of  complaint  men- 
tioned and  set  forth,  and  ordered  the  deeds  to  be  made  to  the 
said  ,  as  trustee,  to  the  several  uses,  intents  and  purposes 

therein  named  and  expressed — that  is  to  say,  to  the  use  and 
benefit  of  your  petitioner,  ,  wife  of  ,  and  her  right 

heirs  forever,  so  that  the  same  shall  not  be  in  any  manner  sub- 
ject to  the  control,  debts  or  liabilities  of  her  present  or  any 
future  husband,  and  upon  the  further  trust  to  convey  the  said 
lands  to  the  use  of  such  person  or  persons,  for  such  use  or  uses, 
estates,  and  subject  to  such  provisos,  limitations  and  agreements 
as  the  said  ,  notwithstanding  her  present  or  any  future 

coverture,  shall,  by  any  deed  or  deeds,  writing  or  writings,  to  be 
by  her  sealed  and  delivered,  or  by  her  last  will  and  testament, 
duly  executed,  give,  devise,  limit  and  appoint,  which  said  deeds 
were  so  made,  acknowledged,  delivered  and  recorded,  as  by 
reference  thereto  will  appear. 

And  your  petitioner  further  shows,  that  on  the  day 

of  ,  eighteen   hundred   and  ,  the  said  did 

make,  execute  and  deliver  to  one  his  certain  bond,  under 

his  seal,  (being  the  same  mentioned  and  set  forth  in  the  said  bill 
of  complaint,)  in  the  penal  sum  of  ,  conditioned  for  the 

payment  of  the  sum  of  ;  and  that  previous  to  the  execu- 

tion of  said  bond,  the  said  had  been  extensively  engaged 


84  FORMS   OF   PLEADINGS. 

in  buying,  growing  and  selling  mulberry  trees,  and  being  so 
employed,  he  represented  to  your  petitioner  that  he  had  become 
indebted  to  the  said  in  the  sum  of  ,  for  which  he 

was  unable  to  provide  payment,  or  to  satisfactorily  secure  to  the 
said  ;  and  that  the  said  wished  her  to  consent  to 

mortgage  the  said  premises  in  the  said  bill  of  complaint  men- 
tioned, to  the  said  ,  to  secure  said  debt,  which  your  peti- 
tioner expressed  her  unwillingness  to  do,  and  that  her  said  hus- 
band became  offended  at  her  for  so  doing,  and  exhibited  his 
displeasure  by  unkind  words  and  treatment,  greatly  to  the  pain 
of  your  petitioner,  his  said  wife ;  and  in  order  to  induce  her  to 
consent  to  unite  with  her  said  trustees  in  making  the  said  mort- 
gage, the  said             told  her  that  he  had  contracts  to  deliver 
mulberry  trees  to             ,  or  contracts  to  deliver  such  trees,  in 
which  contracts  the  said  was  interested,  which  would 
amount  to  at  least             ,  and  that  that  sum,  or  a  large  portion 
of  it,  would  be  coming  from  the  said  to  the  said  in 
the  fall  of  the  then  present  year ;  and  that  it  was  understood  be- 
tween himself  and  the  said             that  the  said  sum  of             ,  so 
to  fall  due  upon  contracts  made,  should  be  applied  to  the  pay- 
ment of  this  bond  or  debt,  which  the  said  mortgage  was  intended 
to  secure,  so  that  the  said  mortgage,  in  fact,  would  be  only  a 
security  that  the  said              would  deliver  the  trees  contracted 
for  according  to  contract,  and  that  upon  such  delivery  the  said 
mortgage  would  be  discharged  and  canceled ;  which  representa- 
tion of  her  said  husband  your  petitioner  communicated  to  the 
said             ,  who  assented  thereto ;  under  the  influence  of  which 
representations  thus  assented  to  by  the  said             ,  and  feeling 
constrained  by  the  unkind  words  and  treatment  of  her  said  hus- 
band, and  fearing  further  to  displease  him,  you  petitioner  did 
very  reluctantly  sign  the  said  mortgage  in  the  bill  of  complaint 
mentioned,  and  did  acknowledge  the  same  as  therein  set  forth, 
but  she  expressly  insists  that  the  same  was  done  through  fear  of 
displeasing  her  said  husband,  and  in  the  belief  that  the  risk  in- 
curred by  her  in  giving  the  said  mortgage  was  greatly  dimin- 
ished by  the  arrangements  which  she  was  led  to  believe  had  been 
made  by  the  said             and  her  said  husband  for  its  discharge. 


OF   ORDERS   TO   ANSWER.  85 

And  your  petitioner  further  shows,  that  at  the  time  of  the 
execution  of  the  said   bond  and  mortgage  the  said  was 

not  indebted  to  the  said  in  the  sum  of  ,  or  in  any 

other  sum,  as  your  petitioner  has  since  discovered,  but  that  the 
said  bond  was  given  and  the  said  mortgage  procured,  not  for  a 
debt  then  actually  due,  but  to  make  good  and  secure  certain 
loans  thereafter  to  be  made ;  and  that  such  loans,  if  ever  made, 
were  not  made  until  some  time  afterwards. 

And  your  petitioner  further  shows,  and  charges,  that  the 
original  contract  or  agreement  between  the  said  and  the 

said  ,  upon  which  the  said  bond  was  given,  and  to  secure 

which  the  said  mortgage  was  procured  as  aforesaid,  was  a  cor- 
rupt understanding  on  the  part  of  said  to  furnish  said 
with  sums  of  money  at  different  times  and  in  parcels  of 
different  amounts  as  his  wants  or  wishes  might  require,  the 
whole  of  which  sum  or  sums  of  money  then  loaned  by  the  said 
to  the  said  did  not  amount  to  the  said  sum  in  the 
said  bond  mentioned,  but  fell  greatly  short  of  the  same,  as  your 
petitioner  expects  to  be  able  to  prove. 

And  your  petitioner  further  charges  and  insists,  that  the  said 
mortgage  was  procured  by  fraud,  concealment,  misrepresenta- 
tion, misusage  and  undue  influence  practiced  upon  your  peti- 
tioner, the  said  ,  by  the  said  and  ,  whereby 
she  was  fraudulently,  deceptively  and  through  fear  brought  to 
execute  the  said  mortgage  contrary  to  the  rules  of  equity  and 
good  conscience. 

Your  petitioner  therefore  prays  that  she  may  be  permitted  to 
answer  the  said  bill  of  complaint  separately,  and  without  being 
joined  in  the  same  with  her  said  husband. 

And  your  petitioner  will  ever  pray,  &c. 

Order  for  wife  to  answer  separately.  This  matter 
being  opened  to  the  court,  &c.,  and  on  reading  and  filing  the 
petition  of  ,  wife  of  the  defendant,  ,  praying  for 

leave  to  put  in  her  answer  in  this  cause  without  her  husband : 
It  is,  &c.,  ordered,  that  the  said  be  at  liberty  to  put  in 

her  answer  in  this  cause  separately  from  her  said  husband. 


86  FORMS   OF   PLEADINGS. 

Order  suppressing  separate  answer  of  married 
woman  filed  without  leave. 

{Title  of  cause.) 
Upon  opening  the  matter  this  day  to  the  court  by  , 

esquire,  of  counsel  with  the  complainant,  in  the  presence  of 

,  esquire,  of  counsel  with  the  defendants,  it  appearing 
that  and  ,  two  of  the  defendants  in  the  above- 

stated  cause,  have  filed  their  joint  and  several  answers  to  the 
complainant's  bill  of  complaint,  and  that  the  said  has 

answered  separately  from  her  said  husband  without  leave  or  order 
of  this  court ;  and  that  the  said  {the  husband)  has  altogether 
failed  to  answer  the  said  bill,  and  the  Chancellor  having  heard 
the  arguments  of  counsel,  and  being  of  the  opinion  that  the  said 
answer  was  irregularly  filed :    It  is,  on  this,  &c.,  on  motion  of 

,  counsel  as  aforesaid,  ordered,  that  the  said  answer  be 
suppressed,  with  costs.  And  it  is  further  ordered,  that  the  de- 
fendants {husband  and  wife)  answer  the  complainant's  bill  on  or 
before  the  day  of  next ;  and  on  failure  thereof,  that 

the  said  bill  be  taken  as  confessed  against  them. 

Order  for  time  to  answer. (a)  On  opening  the  matter 
to  the  court  this  day,  by  ,  of  counsel  with  the  defendant, 

,  and  on  good  cause  shown  :    It  is,  on  this,  &c,,  on  motion 
as  aforesaid,  ordered,  that  the  said  defendant,  ,  have 

days  to  file  his  answer  to  the  complainant's  bill  of  complaint, 
from  and  after  the  date  of  this  order. 

Order  for  commission  to  take  an  answer.(6) 

1  On  bill,  &c. 

{Title  of  cause.)  |  Order. 

Upon  opening  this  matter  to  the  court,  by  ,  of  counsel 

with  the  defendant,  ,  it  appearing  to  the  satisfaction  of 

(a)  Orders  of  this  nature  are  usually  the  party  ;  but  the  application  is  ad- 
granted  ex  parte,  and  without  notice,  dressed  wholly  to  the  discretion  of  the 
upon  satisfying  the  court  that  there  court. 

are  no  laches,  and  that  further  time  is  {b)  Rule  62  provides  that  where  an 

rendered    necessary    by   the   circum-  answer  shall  be  sworn  to  by  a  defend- 

stances  of  the  case  or  the  situation  of  ant  out  of  this  state,  the  oath  may  be 


COMMISSION   TO   TAKE   ANSWER. 


87 


the  court  that  the  said  resides  out  of  this  state,  to  wit, 

at  ,  in  the  State  of  ,  and  that  by  reason  of  his  non- 

residence,  (or,  "  his  absence  from  this  state,")  he  cannot  duly 
make  and  certify  his  answer  to  the  said  bill  into  this  honorable 
court  without  a  commission  for  that  purpose ;  and  it  being 
prayed  that  a  commission  out  of  and  under  the  seal  of  this  court 
may  issue  to  and  ,  of  ,  in  the  State  of  , 

{or,  "  in  the  Republic  of  France,"  or  as  the  case  may  be,)  to 
take  the  answer  of  the  said  defendant :    It  is,  on  this 
day  of  ,  in  the  year,  &c,,  ordered,  that  a  commission  for 

that  purpose  issue  to  the  said  and  ,  who  are  hereby 

appointed  commissioners  to  take  said  answer  of  the  said  defend- 
ant accordingly. 


taken  before  certain  officers  referred 
to  in  the  rule,  at  the  place  where  the 
answer  shall  be  sworn  to.  See  Rev., 
''  Chancery,"  ^l  6,  7,  p.  164 ;  and  Rev:, 
"Oath,"  §  5,  p.  740,  for  a  statement  of 
the  officers  before  whom  the  oath  may 
be  taken.  The  practice  of  issuing  a 
commission  to  take  an  answer  is 
virtually  superseded  by  those  provi- 
sions. In  some  cases,  however,  it  may 
be  necessary  or  convenient  to  issue  a 
commission  instead  of  taking  the  other 
coui'se.  To  obtain  a  commission  to 
take  the  answer  of  a  defendant  resid- 
ing abroad,  the  defendant  must  apply 
to  the  court,  upon  notice  to  the  com- 
plainant, and  upon  an  affidavit  that 
the  defendant  is  abroad,  and  stating 
the  particular  place.  The  affidavit  of 
the  defendant's  solicitor,  or  of  his 
general  attorney,  is  sufficient.  1  Hcff. 
Ch.  Pr.  237.  If  it  be  necessary,  the 
order  granting  the  commission  may 
contain  a  clause  extending  the  time 
for  answering.  The  notice  of  motion 
should  name  the  commissioners  pro- 
posed by  the  defendant.  If  the  com- 
plainant wishes  to  join  in  the  com- 
mission, he  may,  upon  the  hearing  of 


the  motion,  name  commissioners  on 
his  part.  One  commissioner  on  each 
side  is  sufficient,  but  for  greater  cau- 
tion it  is  usual  to  name  two  or  more. 
Id.  The  commission,  when  granted, 
is  issued  under  the  seal  of  the  court, 
directed  to  the  persons  named  in  the 
order  as  commissioners,  and  is  trans- 
mitted to  them  by  the  solicitor  of  the 
defendant.  If  the  complainant  has 
joined  in  the  commission,  five  days' 
notice  of  the  time  and  place  of  exe- 
cuting it  must  be  given  to  the  com- 
missioner named  by  him.  If  the 
complainant  has  not  named  commis- 
sioners, no  notice  need  be  given  and 
the  commission  may  be  executed  by 
the  commissioners  named  in  the  com- 
mission, ex  parte.  Hinde  234.  If  the 
complainant  has  joined  in  the  com- 
mission, it  will  be  sufficient  if  one 
only  attends  on  each  side.  If  none 
of  the  complainant's  commissioners 
attend,  the  defendant  must  have  two 
present,  because  no  fewer  than  two 
can  take  the  answer  and  return  the 
commission.  Prae.  Reg.  116;  see  1 
Barb.  Ch.  Pr.  180,  161. 


88  FORMS   OF   PLEADINGS. 

Commission  to  take  an  answer. (a)  New  Jersey,  to 
wit — The  State  of  New  Jersey  to  and  and  , 

esquires — Greeting : 

Whereas,  ,  complainant,  has  lately  exhibited  his  bill  of 

[l.  8.]  complaint  before  us,  in  our  Court  of  Chancery,  against 
,  defendant ;  and  whereas  we  have,  by  our  writ,  lately 
commanded  the  said  defendant  to  appear  before  us  in  our  said 
Court  of  Chancery,  at  a  certain  day  now  past,  to  answer  the 
said  bill :  Know  ye,  that  we  have  given  unto  you,  and  any  two 
of  you,  full  power  and  authority,  at  such  certain  day  and  place 
as  you  shall  think  fit,  to  go  to  the  said  defendant,  if  he  cannot 
conveniently  come  to  you,  and  take  his  answer  to  the  said  bill 
on  his  solemn  oath,  or  if  he  be  conscientiously  scrupulous  of 
taking  an  oath,  then  on  his  solemn  affirmation,  to  be  adminis- 
tered by  you,  or  any  two  of  you,  the  said  answer  being  distinctly 
and  plainly  written  upon  paper.  And  when  you  shall  have  so 
taken,  you  are  to  send  the  same,  closed  up,  under  your  seals,  or 
the  seals  of  any  two  of  you,  unto  us,  in  our  said  Court  of  Chan- 
cery, at  Trenton,  together  with  this  writ. 

Witness  his  Honor,  ,  Chancellor  of  our  said  state,  at 

Trenton  aforesaid,  the  day  of  ,  in  the  year  of  our 

Lord,  &c.  Clerh. 

Form  of  oath  to  be  administered  to  defendant.(6) 

You  do  swear  {or  "  affirm ")  that  you  have  read  {or  "  heard 
read")  this  your  answer,  and  that  you  know  the  contents  thereof, 
and  that  the  same  is  true  of  your  own  knowledge,  except  as  to 
the  matters  which  are  therein  stated  upon  your  information  and 
belief,  and  as  to  these  matters,  you  believe  it  to  be  true. 

(a)  The  commissioners  who  are  to  (6)  Every  person   must   be  sworn, 

act  and   the  defendant   being  met  at  unless  he  shall  allege  that  he  is  con- 

the  time  and  place  agreed  upon,  and  scientiously  scrupulous   of  taking  an 

the   answer   being   produced,   one   of  oath.     Williamson  v.  Carroll,  1  Harr. 

the  commissioners  then  asks,  "  Have  217.    The  oath  of  a  Jew  must  be  made 

you  read  or  heard  this,  your  answer,  according  to  the  form  and  solemnities 

read ;  and  do  you  exhibit  it  as  your  of  the  Jewish  religion.     Newman  v. 

answer  to   the   bill  of  complaint   of  Newman,  3  Hal.  Ch.  26.     Before  the 

A  B  ?  "     If  he  answers  in  the  affirm-  defendant  is  sworn,  he  must  sign  his 

ative,  the  oath  is  then  administered  answer  and  each  schedule  thereto,  in 

to  him  by  one  of  the  commissioners.  the   presence   of  the   commissioners ; 


DEMURRER. 


89 


Certificate  of  commissioners.(a)    This  is  to  certify  that 
the  defendant,  ,  on  the  day  of  ,  &c.,  appeared 

and  answered  that  he  had  signed  the  foregoing  answer  in  our 
presence,  and  thereupon  was  sworn  (or  "  affirmed  ")  before  us, 
that  he  knew  the  contents  of  the  said  answer  subscribed  by  him, 
and  that  the  same  was  true  of  his  own  knowledge,  except  as  to 
the  matters  which  are  therein  stated  to  be  on  his  own  informa- 
tion and  belief,  and  as  to  those  matters,  he  believed  it  to  be  true. 
{Signatures  of  commissioners.)     [l.  s.] 


OF  DEMURRER. 


Title  and  commencement  of  a  demurrer. (6)     The 
demurrer  of  ,  defendant,  (or,  "  the  joint   and   several 

demurrers  of  and  ,  the  {or,  "  two  of  the  defend- 


and  the  answers  thus  taken,  together 
with  the  schedule  (if  any)  are  to  be 
annexed  to  the  commission,  and  the 
commissioners  must  then  write  and 
sign  the  caption  at  the  foot  of  the 
answer.  Any  alterations  made  in  the 
answer  or  schedules,  previous  to  the 
taking  thereof,  must  be  authenticated 
by  the  commissioners.  Dan.  Ch.  Pr. 
751.  For  mode  of  verification  of 
answer,  see  Pincers  v.  Robertson,  9  C. 
E.  Gr.  348. 

(a)  Care  must  be  taken  to  have  the 
commission,  with  the  answer,  returned 
by  the  time  limited  for  filing  the 
answer.  1  Dan.  Ch.  Pr.  749.  The 
answer  and  schedules,  with  the  cap- 
tion, being  annexed  to  the  writ,  the 
return,  in  the  following  or  some  other 
convenient  form,  to  wit,  "  The  execu- 
tion of  the  within  appears  by  the 
annexed  schedule,"  must  be  endorsed 
upon  the  writ,  and  be  signed  by  at 
least  two  of  the  commissioners.  All 
these  documents  are  then  enclosed  in 


an  envelope,  and  sealed  ;  the  commis- 
sioners sign  across  their  respective 
seals,  and  direct  the  envelope  to  the 
Chancellor  or  clerk  at  Trenton. 

(6)  Under  the  existing  rules  of 
practice,  any  objection  to  a  bill  (or 
other  pleading)  may  be  made  and  ad- 
judicated upon,  on  motion,  without 
the  filing  of  a  demurrer.  The  party 
objecting  must  give  eight  days'  notice 
of  such  motion,  and  in  the  notice 
must  state  the  particular  grounds 
of  objection.  Rule  213.  The  only 
pleading  in  equity  that  can.  be  de- 
murred to  is  the  bill.  Travers  v. 
Ross,  1  MeCart.  254.  The  defendant 
protects  himself  from  giving  discovery 
by  a  demurrer,  where,  upon  the  face 
of  the  bill,  it  is  apparent  that  there  is 
no  equity  to  sustain  the  suit,  for,  as  a 
demurrer  is  decided  entirely  upon 
what  appears  upon  the  face  of  the 
bill,  the  complainant  has  no  use  for 
any  evidence,  and  hence  a  successful 
demurrer  protects  the  defendant  from 


90 


FORMS   OF   PLEADINGS. 


ants,")  to  the  bill  of  complaint  of  ,  complainant.     This 

(or  "  these  ")  defendant  {or  "  defendants,")  by  protestation,  not 
confessing  all  or  any  of  the  matters  and  things  in  the  complain- 


giving  any  discovery  whatever.  Lang- 
dell's  Eq.  PI.  58  ;  Vail  v.  Central  JR. 
B.  Co.,  8  a  E.  Gr.  466;  Black  v. 
Shreve,  4  Hal.  Ch.  440.  The  princi- 
pal grounds  of  objection  to  the  relief 
sought  by  an  original  bill  which  may 
be  taken  advantage  of  by  demurrer 
are — 1.  That  the  subject  of  the  suit 
is  not  within  the  jurisdiction  of  a 
court  of  equity.  2.  That  it  appears 
on  the  face  of  the  bill  that  some  other 
court  of  equity  has  the  proper  juris- 
diction. 3.  That  the  plaintiff  is  not 
entitled  to  sue  by  reason  of  some  per- 
sonal disability  wliich  is  apparent  on 
the  bill,  and  no  next  friend  or  guardian 
is  named  in  the  bill.  4.  That  the 
complainant  has  no  interest  in  the 
subject  or  title  to  institute  a  suit  con- 
cerning it.  5.  That  the  complainant 
has  no  right  to  call  upon  the  de- 
fendant concerning  the  subject  of  the 
suit.  6.  That  complainant  has  no 
right  to  the  relief  he  prays.  7.  That 
the  bill  is  deficient  to  answer  the 
purposes  of  complete  justice.  8.  Or 
where  the  bill  is   defective  in   form. 

9.  Or  is  defective  for  want  of  parties, 
but  a  demurrer  for  want  of  parties 
must  show  who  are  the  proper  parties. 

10.  Or  where  the  bill  improjierly 
confounds  distinct  subjects  or  unnec- 
essarily multiplies  suits. 

The  principal  grounds  of  objection 
by  way  of  demurrer  to  the  discovery 
sought  by  the  bill  are — 1.  That  the 
case  made  by  the  bill  is  not  such  in 
which  a  court  of  equity  assumes  a 
jurisdiction  to  compel  discovery.  2. 
For  want  of  interest  in  complainant. 
3.  Or  in  defendant.  4.  For  want  of 
privity  of  title  between  the  complain- 


ant and  defendant.  5.  That  the  dis- 
covery is  immaterial.  6.  That  the 
situation  of  the  defendant  renders  it 
improper  for  a  court  of  equity  to  com- 
pel discovery.  7.  Or  where  a  dis- 
covery would  subject  the  defendant  to 
a  forfeiture,  &c.  A  demurrer  to  a 
bill  of  discovery  will  not  hold  for 
want  of  parties,  or,  in  general,  for 
want  of  equity. 

In  a  doubtful  case  the  court  will 
not  decide  the  question  raised  upor» 
the  bill  upon  demurrer,  but  will  over- 
rule the  demurrer,  without  prejudice 
to  the  defendants  raising  the  objection 
at  the  hearing  Brcwnsword  v  Ed- 
wards, 2  Ves.  243 ;  Mortimer  v.  Hartley, 
3  De  G  &  Sm.  321 ;  Evans  v.  Evans, 
18  Jur.  666,  Lds.  Js.  A  decision 
upon  a  -demurrer  is  not  followed  by  a 
decree,  but  simply  by  an  order  allow- 
ing or  overruling  the  demurrer,  as  the 
case  may  be  ;  and  the  costs  given  are 
not  costs  of  the  cause,  but  merely  of 
the  demurrer.  Bev.,  "  Chancery,"  I 
32.  Where  a  demurrer  is  allowed, 
the  only  thing  actually  decided  is, 
that  the  defendant  is  not  bound  to 
answer  the  bill  as  it  stands,  and  the 
complainant  cannot  proceed  without 
amending  the  bill.  If  the  complain- 
ant does  not  proceed  to  amend  his 
bill,  and  the  defendant  wishes  to  put 
an  end  to  the  suit  and  recover  his  full 
costs,  he  must  move  to  dismiss  the 
bill.  Harr.  Ch.  Br.  216 ;  see  Bev., 
"  Chancery,"  §  33 ;  also  rule  30.  The 
court  has  no  discretionary  power  in 
the  matter  of  costs  on  a  demurrer. 
Hicks  V.  Campbell,  4  C.  E.  Gr.  187. 
The  usual  course  of  proceeding  when 
the  demurrer  comes  on  for  hearing^ 


DEMURRER.  91 

ant's  bill  of  complaint  contained  to  be  true,  in  such  manner  and 
form  as  the  same  are  therein  set  forth  and  alleged  ;  (or,  where 
the  demurrer  is  to  part  of  the  bill,  or  to  the  relief,  add  here,  "  as 
to  so  much  and  such  part  of  the  said  bill  as  seeks  that  this  de- 
fendant {or  "  these  defendants ")  may  answer  and  set  forth 
whether,  &c.,  and  prays,  &c.,  {if  relief  he  prayed,  doth  or 
"do")  demur  thereto,  {or  "to  said  bill")*  and  for  cause  of 
demurrer  show  {or  "shows,")  &c."  {Here  set  forth  cause  of 
demurrer.) 

Conclusion.  Wherefore,  and  for  divers  other  good  causes  of 
demurrer  appearing  in  the  said  bill,  this  defendant  doth  demur 
thereto,  and  humbly  prays  the  judgment  of  this  honorable  court 
whether  he  should  be  compelled  to  make  any  further  or  other 
answer  to  the  said  bill,  {or,  where  demurrer  is  to  part  only,  say, 
"  to  such  part  of  the  said  bill  as  is  so  demurred  unto  as  afore- 
said,") and  prays  to  be  hence  dismissed  with  his  costs  and  charges 
in  this  behalf  most  wrongfully  sustained. 

and  all  parties  appear,  is  for  the  grounds  of  demurrer.  In  such  case, 
counsel  in  support  of  the  demurrer  to  it  seems  discretionary  with  the  court 
be  first  heard,  next  the  complainant's  to  grant  costs  or  not.  Marsh  v.  Marsh, 
counsel,  and  then  the  counsel  of  the  1  0.  E.  Gr.  398.  If  the  demurrer  be 
demurring  party  replies.  In  hearing  overruled,  the  defendant  must  answer 
a  demurrer,  the  argument  is  strictly  the  bill  in  twenty  days  after  the  time  of 
confined  to  the  case  appearing  upon  filing  the  order  overruling  demurrer, 
the  record ;  and  for  the  purposes  of  or  the  bill  will  be  taken  as  confessed, 
the  argument,  the  matters  of  fact  Pamph.  L ,  1893,  p.  201.  Lord  Lang- 
stated  in  the  bill  that  are  well  pleaded  dale  gave  leave  for  the  defendant  to 
are  admitted  to  be  true.  6*06/6  v.  amend  a  clerical  error  in  a  demurrer, 
Andruss,  1  Gr.  Ch.  66.  Where,  upon  the  time  for  demurring  not  having 
the  hearing  of  a  demurrer  to  the  expired,  in  Richardson  v.  Hastings,  7 
whole  bill,  it  appears  that  the  defend-  Beav.  58 ;  and  see  Glegg  v.  Leigh,  4 
ant  is  entitled  to  demur  to  some  part  Mad  Rep.  207.  Filing  a  general  de- 
only,  the  demurrer  may  be  amended  murrer  is  a  waiver  of  all  defects  in 
so  as  to  confine  it  to  the  facts  to  which  the  service  of  the  subpoena.  Ogden  v. 
the  defendant  has  a  right  to  demur  ;  Gibbons,  July,  1828.  A  misjoinder  of 
in  such  case,  the  usual  course  is  to  complainants  must  be  taken  advantage 
overrule  the  demurrer,  with  leave  to  of  by  demurrer.  Hendrickson  v  Wal- 
the  defendant  to  put  in  a  new  de-  lace,  4  Slew.  Eq.  604. 
murrer,  or  to  amend  it  by  stating  the 


92  FORMS   OF   PLEADINGS. 

Affidavit  to  be  annexed  to  demurrer.(a) 

State  of  New  Jersey, 
county  of  , 

,  of  full  age,  being  duly  sworn  according  to  law,  saith — 
That  the  foregoing  demurrer  is  not  interposed  for  delay,  but  in 
good  faith  for  the  causes  therein  set  forth. 

(Signature.) 
Sworn  and  subscribed  before  me,  this  day  of  , 

A.  D. 

Certificate  of  counsel.  I  certify  that  I  have  perused  the 
complainant's  bill  in  the  above-stated  cause,  and  that  the  above 
demurrer  is  well  founded  in  point  of  law. 

(Signature  of  counsel.) 

General  demurrer  for  want  of  equity.(6)  As  in  com- 
mon form  to  *,  then,  "that  the  complainant  hath  not,  in  and  by 
his  said  bill,  made  or  stated  such  a  case  as  entitles  him,  in  a 
court  of  equity,  (or,  "  in  this  honorable  court,")  to  any  discovery 
from  this  defendant,  (or,  "  these  defendants,  or  either  of  them,") 
or  to  any  relief  against  him,  (or,  "  them,"  or,  "  either  of  them,") 
as  to  the  matters  contained  in  the  said  bill,  or  any  of  such 
matters.     Wherefore,"  &c. 

(a)  A  like  affidavit  and  certificate  201,  I  24.     After  time  to  answer  has 

of  counsel  are  required  by  statute  to  been   obtained,  the  defendant  cannot 

be  annexed  to  a  plea.     Every  plea  or  demur.    Dyson  v.  Benson,  Cooper's  Ca. 

demurrer  filed  without  such  affidavit  110.   If  the  defendant  means  to  demur 

and  certificate   may  be  treated   as  a  alone,  he  must  do  that  without  asking 

nullity.     Rev.,  "  Chancery,"  §  27.     It  time,  unless  a  very  special  ground  is 

is  not,  however,  within  the  power  of  laid.     If  he  asks  time,  he  may  ask  for 

the   party  to  so  treat   them   in   such  time  to  plead,  answer  or  demur,  (that 

case.      The   word   "  may "    has   been  is,  to  plead  and  answer  or  demur  and 

held  to  refer  to  the  discretion  of  the  answer;)   but  if  he  applies  for   that 

court.     Jn  Chancery,  1874.     The  de-  order,  he  cannot  demur  alone.    Taylor 

murrer   must   be  filed   within   thirty  v.  Milner,  10  Ves.  444. 

days  from  the  return  of  the  subprena  (6)  A  demurrer  should  specify  some 

to    answer,   unless    further    time    be  cause  of  demurrer,  but   it  must  not 

granted,   and   the   cause,   within   ten  introduce  a  material   fact;   in   other 

days  thereafter,  noticed  and  set  down  words,  a  defence   by  demurrer  must 

for  argument  for  the  next  term  by  the  rest  entirely  upon  the  objection  which 

party  demurring.   Pamph.  L ,  1893,  p.  the   case  made  by  the  bill   presents. 


DEMURRER. 


93 


Demui'rer  for  multifariousness. (a)  Title  and  commence- 
ment as  before,  then,  "  that  it  appears  by  the  said  bill  that  the 
same  is  exhibited  against  this  defendant  and  the  several  other 
persons  therein  named  as  defendants  thereto  for  distinct  matters 
and  causes,  in  several  whereof,  as  appears  by  the  said  bill,  this 
defendant  is  not  in  any  manner  interested  or  concerned,  and  that 
the  said  bill  is  altogether  multifarious.     Wherefore,"  &c. 


Wood  V.  Midgely,  5  De  G.,  M.  &  G. 
41,  Lds.  Js.  Under  a  general  de- 
murrer for  want  of  equity,  no  objec- 
tion for  want  of  form  can  properly  be 
raised.  Miller  v.  Jamison,  9  C.  E.  Gr. 
41 ;  Wilson  v.  Hill,  1  Dick.  Ch.  Rep. 
367.  But  leave  will  be  given  to 
amend  by  stating  grounds  of  demurrer. 
Marsh  v.  Marsh,  1  C.  E.  Gr.  391; 
Board  of  Dom.  Missions  v.  Puechel- 
steiv,  12  C.  E.  Gr.  30.  A  misjoinder 
may  be  assigned  as  cause  for  demurrer, 
ore  tenus,  at  the  argument,  though  a 
general  demurrer  for  want  of  equity, 
be  overruled.  Barret  v.  Doughty,  10 
a  E.  Gr.  380.  As  to  whether  a 
general*  demurrer  will  lie  where  a 
demurrant  is  a  proper  though  not  a 
necessary  party,  see  Dorsheimer  v. 
Rorhack,  8  C  E.  Gr.  46;  S.  C,  on 
appeal,  10  C.  E.  Gr.  516;  Wilson  v. 
Bellows,  3  Stew.  Eq.  282.  Under  rule 
209,  a  simple  statement  of  want  of 
equity,  in  the  usual  language  of  a 
general  demurrer,  will  be  sufficient  in 
cases  where  the  court  finds,  on  looking 
at  tlie  bill,  that  his  right  to  relief  is 
doubtful  or  uncertain,  but  where  the 
defect  is  obscure  or  latent  to  such  an 
extent  that  the  court,  on  inspecting 
the  bill,  cannot  readily  discern  it, 
there  must  be  a  more  explicit  state- 
ment of  the  grounds  of  demurrer. 
Essex  Paper  Co.  v.  Greacen,  18  Stew. 
Eq.  504 ;  and  see  Van  Houten  v.  Van 
Winkle,  1  Dick.  Ch  Rep.  380. 

(a)  A  general  demurrer  to  a  bill  on 
the  ground  of  multifariousness,  which 


is  not  sustained  as  to  the  only  part 
which  makes  it  multifarious,  will  be 
overruled.  Brownlee  v.  Lockwood,  5 
C.  E.  Gr.  239.  If  a  bill  unite  a  de- 
mand of  several  matters  of  distinct 
natures  against  different  defendants, 
it  is  demurrable  for  multifariousness. 
Emans  v.  Wortman,  2  Beas.  205.  So 
if  a  joint  claim  against  two  defendants 
is  joined  in  the  same  bill  with  a  sepa- 
rate claim  against  one  of  them  only, 
either  or  both  of  the  defendants  may 
demur  for  multifariousness.  Ibid.; 
Van  Houten  v.  Van  Winkle,  1  Dick. 
Ch.  Rep.  380.  The  objection  to  a 
misjoinder  of  husband  and  wife  as 
complainants  may  be  taken  by  de- 
murrer, but  it  constitutes  no  ground 
for  dissolving  the  injunction,  if  one 
has  been  granted.  Johnson  v.  Vail,  1 
McCart.  423  Where  the  case  made 
by  the  bill  is  so  entire  that  it  cannot 
be  prosecuted  in  several  suits,  and  yet 
each  of  the  defendants  is  a  necessary 
party  to  some  part  of  the  case  as 
stated;  neither  of  the  defendants  can 
demur  for  multifariousness,  or  for  a 
misjoinder  of  causes  of  action,  in  some 
of  which  he  has  no  interest.  Way  v. 
Bragaw,  1  C.  E.  Gr.  213.  It  has  been 
held,  that  upon  the  argument  of  a 
demurrer  for  multifariousness,  want 
of  equity  may  be  assigned  as  cause  of 
demurrer,  ore  tenus.  Rump  v.  Green- 
hill,  20  Bear.  512.  But  the  contrary 
was  decided  in  Picton  v.  Lockett,  by 
the  V.  C,  April,  1837,  3IS.;  Tripp's 
Forms,  p.  43,  n. 


94  FORMS   OF   PLEADINGS. 

Demurrer  for  want  of  parties. (a)  Title  and  commence- 
ment as  before,  then,  "  that  the  said  ,  in  the  said  bill  named, 
is  made  a  defendant  when  he  ought  to  be  made  a  complainant. 
And  this  defendant  further,  for  cause  of  demurrer,  shows,  that 
the  heirs- at- law  of  the  said  ,  in  the  said  bill  named,  ought 
to  be  made  parties  "  {or  as  the  case  may  be.) 

Demurrer  to  a  bill  of  interpleader  for  want  of  the 
necessary  affidavit  and  for  want  of  equity.  Com- 
mencement as  in  usual  form,  then,  "  that  although  the  said  com- 
plainant's said  bill  is,  upon  the  face  thereof,  a  bill  of  inter- 
pleader, yet  the  said  complainant  has  not  annexed  to  his  said 
bill  an  affidavit  that  he  doth  not  collude  concerning  such  matters 
with  any  of  the  defendants  thereto,  which  affidavit  ought, 
according  to  the  practice  of  this  court  as  this  defendant  is 
advised,  to  have  been  made  by  the  said  complainant  and  annexed 
to  the  said  bill.  And  for  further  cause  of  demurrer,  this  de- 
fendant further  shows,  that  the  said  bill  does  not  contain  suffi- 

(a)  A  demurrer  for  want  of  parties  cause  which  covers  the  whole  extent 

must  point  out  the  necessary  parties  of  the  demurrer.     Barrett  v.  Doughty, 

either  by  name  or  in  some  other  man-  10  C.  E.  Gr.  380.     If  the  demurrer  is 

ner  so  as  to  enable  the  complainant  good   in   substance,  but  defective   in 

to  amend  by  joining  the  proper  parties.  form,  the  court  will  grant  permission 

Dias  V.  Bouchaud,  10  Paige  445.     A  to  withdra.w  it,  and  file  a  new  one, 

bill   is   not   demurrable   for   want   of  upon  payment  of  costs.     1  Hoff.  Ch. 

proper  parties,  where  all  the  persons  Pr.  217 ;   Devonsher  v.  Newenham,  2 

whose  rights  are  to  be  affected  by  the  Sch.  &  Lef.  199.    And  it  may  be  with- 

decree     are    joined.       Swedesborough  drawn  after  it  is  set  down  for  argu- 

Church  V.  Shivers,  1   C.  E.  Gr.  453.  ment,  upon  payment  of  costs.    Doivnes 

After  a  demurrer  for  want  of  parlies  v.  East  India  Co.,  6  Ves.  586.   It  is  not 

was    sustained,   leave  was    given    to  ground  of  demurrer  that  no  ticket  was 

amend  by  adding  parties.     Melick  v.  issued  with  the  subpoena.     Ludington 

Melick,  2  C.  E.  Or.  156 ;  Seymour  v.  v.  Elizabeth,  5  Stew.  Eq.  159.     If  the 

Long  Bock    Co.,  Id.  169.     It  is   the  defendant  demur  to  the  bill  for  want 

settled  practice,  that  where  a  demurrer  of  parties  or  other  defect,  that  does 

is  put  in  to  the  whole  bill  for  causes  not  go  to  the  equity  of  the  whole  bill, 

assigned  on  the  record,  if  those  causes  the  complainant  may  amend  of  course 

are  overruled,  the  defendant  will  be  at  any  time  before  the  next  term  after 

allowed    to   assign   other  causes,   ore  filing  the  demurrer,  upon  payment  of 

tenus,  at  the  argument,  but   the  de-  costs.     Rule  70. 
murrer  ore  tenus  must   be  for  some 


DEMURRER.  95 

cient  matter  of  equity,  whereupon  this  court  can  ground  any 
decree  in  favor  of  the  said  complainant,  or  give  the  said  com- 
plainant any  relief  against  this  defendant.     Wherefore,"  &c. 

Demurrer  to  a  bill  of  interpleader,  because  it  does 
not  show  any  claim  of  right  in  the  defendant.    As 

in  common  form  to  *,  then,  "  that  the  complainant  has  not,  in  his 
said  bill  of  interpleader,  shown  any  claim  of  right,  title  or 
interest  whatsoever  in  the  said  bill  particularly  mentioned  and 
described,  in  respect  whereof  this  defendant  ought  to  be  com- 
pelled to  interplead  with  ,  in  the  said  bill  named,  and  the 
other  defendant  thereto.  Wherefore,"  &c.  {Or,  in  cases  where 
the  complainant  shows  no  right  to  compel  defendant  to  interplead, 
"that  the  said  complainant  has  not,  in  and  by  his  said  bill, 
shown  any  right  and  title  whatsoever  to  compel  this  defendant 
and  ,  the  other  said  defendant  to  the  said  bill,  to  inter- 
plead.") 

Demurrer  and  answer. (a)  The  joint  and  several  de- 
murrer of  and  ,  to  (part,)  and  the  joint  and  several 
answer  of  the  same  defendants  to  the  ("residue  of  the")  bill  of 
complaint  of            ,  the  complainant. 

These  defendants,  to  so  much  of  the  complainant's  bill  as 
prays  that  they  may  be  decreed  to  transfer  to  the  complainant, 
as  the  executors  of  ,  in  the  said  bill  mentioned,  the,  &c., 

in  said  bill  mentioned,  and  that  the  said  defendant,  ,  may 

be  decreed  to,  &c.,  in  the  said  bill  mentioned ;  as  prays,  that, 
<fec.,  and  that  these  defendants  may  be  decreed  to,  &c.,  and  to  so 
much  of  said  bill  as  prays  further  or  other  relief  with  respect, 
<fec.,  do  demur,  and  for  cause  of  demurrer  show,  that  the  said 
complainant  has  not  made  or  stated  such  a  case  as  entitles  him 
in  this  honorable  court  to  the  relief,  &c.,  prayed  for,  or  any  part 

(a)  The   complainant   cannot   pro-  to  the  answer  for  insufficiency,  before 

ceed  on  the  answer  till  the  demurrer  the  demurrer   has   been   disposed  of, 

has  been  argued  or  disposed  of.    Bev.,  the  demurrer  will  be  held  sufficient. 

"  Chancery,"  I  3.    The  demurrer  must  London  Assurance  v.  East  India  Co., 

be  set  down  for  hearing  in  the  usual  3  P.  Wms.  326 ;  Mil.  PL  256 ;  Boyd 

way.      Bev.,   "  Chancery,"    I    24.      If  v.  Mills,  13  Ves.  85. 
complainant  amend  his  bill,  or  except 


96  FORMS   OF   PLEADINGS. 

thereof.  And  these  defendants  humbly  pray  the  judgment  of 
this  court  as  to  such  parts  of  the  said  bill  as  they  have  so 
demurred  to  as  aforesaid.  And  as  to  the  residue  of  the  said  bill 
— that  is  to  say,  all  the  discovery,  and  the  rest  of  the  relief,  by 
the  said  bill  prayed — these  defendants,  for  answer  thereto,  say 
they  admit  it  to  be  true,  that,  &c. 

For  orders  on  demurrer,  see  pages  101,  102. 


OF   PLEAS. 


Title  and  commencement  of  plea.(a)  The  plea  of 
,  defendant,  {or,  "  of  the  defendants,")  to  the  bill  of  com- 
plaint of  ,  complainant,  {or,  "  the  joint  and  several  plea 
of  and  ,  defendants,"  &c.)  This  defendant,  {or, 
"  these  defendants,")  by  protestation,  not  confessing  or  acknowl- 
edging the  matters  and  things  in  and  by  said  bill  set  forth  and 
alleged  to  be  true,  in  such  manner  and  form  as  the  same  are 
thereby  and  therein  set  forth  and  alleged,  for  plea  to  the  whole 
of  the  said  bill,t  or  to  so  much  and  such  part  of  the  said  bill  as 
prays,  &c.,  or  seeks  a  discovery  from  this  defendant,  {or,  "these 
defendants,")  whether,  &c.,  saith,  {or  "  say,")  that,  &c. 

(a)  For  form  of  affidavit  and  certi-  it  does  not  depend  upon  the  technical 
ficate  to  be  annexed  to  plea,  see  page  form  of  the  plea,  but  upon  the  suffi- 
92.  A  defendant  who  has  a  single  ciency  of  its  averments.  Davison's 
affirmative  defence,  which  will  be  Ex'rs  v.  Johnson,  1  C.  E.  Gr.  112. 
decisive  of  the  controversy,  can  avoid  Leave  to  file  a  plea  after  demurrer 
giving  discovery  in  aid  of  the  case  overruled  will  be  granted  on  notice, 
stated  in  the  bill  by  setting  up  his  and  such  leave  will  not  be  granted  if 
defence  by  a  plea ;  and  this  is  the  ob-  it  is  manifest  that  the  plea  offered,  if 
ject  of  pleading  instead  of  answei'ing.  true  in  fact,  would  be  no  bar  to  the 
This  mode  of  setting  up  a  defence  is  relief  sought  by  the  bill.  Seeley  v. 
the  same,  whether  by  plea  or  answer ;  Price,  1  Hal.  Ch.  231.  Under  the 
but  no  more  than  one  defence  can  be  statute  {Rev.,  "Chancery,"  |  3,)  the 
set  up  by  plea,  without  the  special  defendant,  under  the  usual  order  to 
leave  of  the  court.  If  such  leave  is  answer  after  demurrer  overruled,  can- 
granted,  each  defence  is  set  up  by  a  not  file  a  plea.  White  v.  Dummer,  1 
separate  plea.  LangdeWt  Eq.  PL  61.  Or.  Ch.  527. 
Where  the  cause  is  heard  upon  a  plea, 


PLEA.  97 

Conclusion.  All  which  matters  and  things  this  defendant 
doth  aver,  {oi-,  "  these  defendants  do  aver,")  to  be  true,  and  he 
pleads,  (or,  "  they  plead,")  the  said  {statute  or  release,  d'c,  as 
the  case  may  be,)  in  bar  to  the  said  complainant's  bill,  {or,  if  the 
plea  extends  to  part  only,  "  to  so  much  of  the  bill  as  is  hereinbe- 
fore particularly  mentioned,"  and  prays  {or  "pray")  the  judg- 
ment of  this  honorable  court  whether  he  {or  "  they  ")  should  be 
compelled  to  make  any  other  or  further  answer  to  the  said  bill, 
{or,  "to  so  much  of  the  said  bill  as  is  hereinbefore  pleaded  to,") 
and  prays  {or  "  pray  ")  to  be  hence  dismissed  with  his  {or  "  their  ") 
costs  and  charges  in  that  behalf  most  wrongfully  sustained. 

{Signature  of  solicitor.) 

{Annex  affidavits  and  certifiGates  as  on  page  92,  et  seq., 
mutatis  mutandis.) 

A  plea  that  the  defendant  is  not  the  personal  rep- 
resentative of  the  deceased,  as  alleged  in  the  bill.(a) 
(Title  and  commencement  as  before.)  That  he,  this  defendant,  is 
not  the  executor  or  administrator  or  the  legal  personal  represen- 
tative of  the  said  ,  as  in  the  said  bill  alleged,  which  said 
representative  or  representatives  ought  to  be  made  party  or 
parties  to  the  complainant's  said  bill,  as  this  defendant  is  ad- 
vised. All  which  matters  and  things  this  defendant  avers  to  be 
true,  and  pleads  the  same  to  the  said  bill,  and  humbly  demands 
the  judgment  of  this  honorable  court,  whether  he  ought  to  be 
compelled  to  make  any  answer  to  the  said  bill  of  complaint, 
and  humbly  prays  to  be  hence  dismissed,  with  his  reasonable 
costs  in  this  behalf  most  wrongfully  sustained. 

{Signature  of  solicitor.) 

(a)  The  defence  of  a  bona  fide  pur-  613.     For  forms  of  these  latter  kinds 

chase  may  be  made  by  plea.     Haugh-  of  pleas,  see  3  Dan.  Ch.  Pr.  2103,  et 

wout   V.  Murphy,   7    C.   E.    Or.   531.  aeq.      According    to   the   practice  in 

The  statute  of  limitations  may  like-  England,  a   plea  must  be  signed   by 

wise  be  set  up  by  plea,  &c.    Bmkman  counsel.    Bule  48  of  this  court  applies 

V.  Decker,  8  C.  E.  Gr.  283 ;  3IcClane's  to  bill  only,  and  Rev.,  "  Chancery,"  I 

Adm'x  V.  Shepherd's  Ex'x,  6  C.  E.  Gr.  27,  provides  for  a  certificate  of  coun- 

76.     The  statute  of  limitations   may  sel  to  be  annexed  to  the  plea;   sig- 

be  pleaded   in   equity  to  actions   for  nature  of  counsel  to  the  plea  is  not 

dower.    Conover  v.  Wright,  2  Hal.  Ch.  essential. 


98  FORMS   OF    PLEADINGS. 

Plea  and  answer  by  an  heir-at-law  that  he  had 
no  lands  by  descent,  accompanied  by  an  answer 
admitting  that  he  is  heir-at-law.  Same  asforegiing  to  f, 
then  say,  "  as  to  so  much  of  the  said  bill  as  seeks  any  relief 
from  a  discovery  from  him,  (save  and  except  whether  he  is  the 
heir-at-law  of  ,  deceased,  in  the  bill  named,)  this  defend- 

ant doth  plead  in  bar  thereto;  and  for  and  by  way  of  plea 
saith  that  he  hath  not,  nor  hath  any  person  or  persons  in  trust 
for  him,  nor  on  the  day  of  filing  the  bill,  nor  at  any  time  before 
or  since,  had  he,  or  any  person  or  persons  in  trust  for  him, 
any  lands,  tenements  or  hereditaments  by  descent  coming  from 
the   said  ,  deceased,  this   defendant's   father;   and    this 

defendant,  not  waiving  his  said  plea,  but  wholly  relying  and 
insisting  thereon,  for  answer  to  the  residue  of  the  said  complain- 
ant's bill,  not  hereinbefore  pleaded  unto,  or  to  so  much  thereof 
as  this  defendant  is  advised  is  material  or  necessary  for  him  to 
make  answer  unto,  saith,  he  admits  he  is  the  heir-at-law  of  the 
said  ,  deceased,"  &c. 

Plea  of  a  former  suit  pending. (a)  These  defendants, 
&c. ;  and  for  cause  of  plea  say,  that  heretofore,  and  before  said 
complainant  exhibited  his  present  bill  in  this  honorable  court, 
to  wit,  on  the  day  of  ,  ,  the  said  complainant, 

(a)  A  plea  of  another  suit  depend-  is  pleaded,  but  it  must  always  appear 
ing  for  the  same  cause  in  bar  of  a  suit  to  have  been  for  the  same  subject- 
in  equity,  can  only  be  of  a  suit  de-  matter.  Matthews  v.  Roberts,  1  Ch. 
pending  in  the  same,  or  in  some  other  Ch.  338.  The  pendency  of  a  former 
court  of  equity.  Way  v.  Bragaw,  1  suit  being  pleaded  in  bar,  the  defend- 
C.  E.  Gr.  213 ;  Fulton  v.  Golden,  10  ant  may  state  the  pendency  and 
C  E  Gr.  353.  It  is  requisite  to  the  object  of  the  former  suit,  and  aver 
validity  of  a  plea  of  another  suit  that  the  present  suit  Avas  brought  for 
pending,  that  it  should  appear  that  the  same  matters;  or  he  may  omit  the 
the  second  suit  is  for  the  same  subject-  averment  that  the  suits  are  for  the 
matter  as  the  first;  but  if  the  facts  same  subject-matter,  provided  he  state 
stated  in  the  plea  plainly  show  this  to  facts  sufficient  to  show  that  they  are 
be  so,  an  express  averment  to  that  so.  Davison's  Ex'rs  v.  Johnson,  1  C. 
effect   is  not  necessary.     McEwan  v.  E.  Gr.  112. 

Broadhead,  3   Stock.  129.     A   former  For  proper  form  of  plea  to  a  bill 

deci'ee  pleaded  in  bar  need  not  appear  against  an  executor  for  account  and 

to  have  been  between   precisely  the  payment  of  a   legacy,  see  Meeker  v. 

same  parties  with  the  one  to  which  it  MarsKs  Ex'r,  Sax.  198. 


PLEA.  99 

("  together  with  ,")  did  exhibit  bill  of  complaint  in 

this  honorable  court  against  these  defendants,  for  the  same 
matters,  and  to  the  same  effect,  and  for  the  like  relief  as  the  said 
complainant  doth,  by  his  present  bill,  demand  and  set  forth, 
("  to  which  said  first  bill  these  defendants  did  put  in  their  joint 
and  several  answers,  and  the  said  complainant  thereunto  did 
reply,  and  other  proceedings  were  thereupon  had ; ")  and  the 
said  former  bill  is  still  depending  in  this  court,  and  the  matters 
thereof  undetermined :  and  therefore  the  said  defendants  do 
plead  the  former  bill,  ("answer  and  proceedings")  in  bar  to  the 
present  bill,  and  humbly  pray,  &c. 

Form   of  plea   to   the  jurisdiction    by  a    foreign 
corporation. 

[Title  of  cause.) 

The  plea  of  ,  the  defendant,  appearing  by  its  president 

for  the  sole  purpose  of  objecting  to  the  jurisdiction  of  this 
honorable  court  over  this  defendant  in  this  action,  and  for  no 
other  purpose,  respectfully  shows  that  this  defendant,  by  protes- 
tation, not  confessing  or  acknowledging  the  matters  and  things 
in  and  by  the  bill  of  complaint  of  said  set  forth  in  such 

manner  and  form  as  the  same  are  thereby  and  therein  set  forth 
and  alleged,  says  that  said  is  not  a  resident  or  citizen  of 

the  State  of  New  Jersey,  or  existing  as  a  body  corporate  under 
or  by  virtue  of  its  laws ;  that  said  has  no  office,  agent  or 

agency  or  place  of  business  within  the  State  of  New  Jersey ; 
that  it  has  never  had  any  office,  agent,  agency  or  place  of  busi- 
ness therein ;  that  it  is  a  body  corporate  existing  under  and  by 
virtue  of  the  laws  of  the  State  of  ;  that  it  has  never  made 

application  for  the  right  or  privilege  of  transacting  business 
under  the  laws  of  the  State  of  New  Jersey ;  that  the  process  in 
this  suit  was  served  on  ,  who  is  a  director  of  the  , 

residing  at  ,  in  the  State  of  New  Jersey  ;  that  said 

was  not  authorized  by  said  ,  this  defendant,  to  act  for  it 

or  in  its  behalf  in  the  matter  or  purpose  of  this  suit  in  any 
manner  whatever,  or  in  any  other  matter  whatever  in  the  State 
of  New  Jersey  ;  that  no  process  or  other  legal  notice  of  this  suit 
has  been  served  upon  this  defendant,  the  ,  or  upon  any 


100  FORMS   OF   PLEADINGS. 

person  duly  authorized  in  its  behalf  in  the  matter  of  this  suit, 
or  upon  any  property  to  it  belonging :  By  reason  whereof 
humbly  submits  that  this  honorable  court  has  not  now, 
and  never  had  or  obtained  jurisdiction  over  the  person  or  prop- 
erty of  this  defendant. 

All  which  matters  and  things  this  defendant  doth  aver  to  be 
true,  and  prays  the  judgment  of  this  honorable  court  whether  it 
should  be  compelled  to  make  any  other  or  further  answer  to  said 
bill,  and  prays  to  be  hence  dismissed,  with  its  costs  and  charges 
in  this  behalf  sustained. 

Replication  to  plea. (a)  [The  form  of  replication  is  the 
same  as  a  replication  to  an  answer.     See  rule  207. 

Order  saving  benefit  of  the  plea  till  the  hearing.(6) 

{Title  of  cause.) 

This  cause  coming  on  to  be  heard  this  day,  in  the  presence  of 

,  of  counsel  with  the  complainant,  and  ,  of  counsel 

for  the  defendant,  ,  and  the  Chancellor  having  heard  the 

(a)    When    the   complainant    con-  either  party  may  enter  the  plea  for 

ceives   the   plea   to   be  good,  though  argument  at  the  next  or  any  subse- 

not   true,  he  may  reply  to  and  take  quent  term.     Bule  13.     The  plea  not 

issue  upon  it,  and  proceed  as  in  case  being  denied  by  a  replication  must, 

of  an  answer.   Rev.,"  Chancery,"  ^  29;  on   the   argument,   be   considered   as 

Mit.  Eq.  PL  201.     If  the  plea  should  true.     Cammann  v.  Traphagan' s  Ez'r, 

be  decided  not  to  be  good,  the  defend-  Sax.  30. 

ant  must  answer  the  bill.  Pamph.  (6)  It  sometimes  happens  that,  upon 
L.,  1893,  p.  201.  If  it  is  sustained,  the  argument  of  a  plea,  the  court,  con- 
the  complainant  must  reply  to  it.  siders  that  although  so  far  as  it  ap- 
When  he  does  reply  and  takes  issue,  pears  it  may  be  a  good  defence,  yet 
the  determination  of  that  issue  is  there  may  be  matter  disclosed  in  evi- 
final.  Flagg  v.  Bonnel,  2  Stock.  82.  dence,  which,  supposing  the  matter 
When  issue  is  taken  upon  the  plea,  to  be  strictly  true,  would  avoid  it.  In 
the  defendant  must  prove  the  facts  it  such  a  case,  the  court,  in  order  that  it 
sets  up.  If  he  succeeds  in  proving  may  not  preclude  the  question  by 
the  truth  of  the  matter  pleaded,  the  allowing  the  plea,  directs  that  the 
suit,  so  far  as  the  plea  extends,  is  benefit  of  it  shall  be  saved  to  the  de- 
barred. Ibid.;  see  rule  13  Where  fendant,  at  the  hearing.  The  effect 
the  complainant  has  taken  issue  upon  of  an  order  for  this  purpose  is  to  give 
a  plea  by  filing  a  replication  thereto,  the   complainant    an    opportunity   of 


ORDERS   ON    PLEA    AND    DEMURRER. 


101 


arguments  of  the  counsel  *  of  the  respective  parties,  and  it  ap- 
pearing to  the  court  proper  that  the  benefit  of  the  plea  filed  in 
this  cause  should  be  saved  to  the  defendant  until  the  final  hear- 
ing :  It  is  accordingly,  on  this,  &c.,  ordered,  that  the  said  plea 
stand  over  until  the  hearing  of  the  cause  for  that  purpose. 
This  order  is  without  costs  to  either  party  as  against  the  other. 


Order  sustaining  demurrer  or  plea.(a) 

{Title  of  cause.) 

{As  in  form  last  above  to  *,  then,  "  and  the  Chancellor,  being 
of  opinion  that  the  said  demurrer  {or  "  plea  ")  is  good  and  suffi- 
cient :  It  is,  &c.,  ordered  that  the  same  do  stand  and  be  allowed, 
and  that  the  complainant  pay  to  the  said  defendant  his  costs  of 
the  s^id  demurrer  {or  "  plea  ")  to  be  taxed.") 


repl^nj^  and  going  into  evidence 
■without  overruling  the  plea.  When 
the  Jai^nefit  of  the  plea  is  reserved  to 
the  lieariui:,  such  part  of  the  bill  as 
is  coveted  by  the  plea  is  not,  to  be 
answer^brt  Neither  party  in  such  case 
recovers  costs  on  the  argument  of  the 
plea.     1  Barb.  Ch.  Fr.  *122. 

(a)  Strictly  speaking,  upon  a  de- 
murrer to  the  whole  bill  being  allowed, 
the  bill  is  out  of  court,  and  no  subse- 
quent proceeding  can  be  taken  in  the 
cause.  The  court  often,  however,  on 
hearing  the  demurrer,  gives  leave  to 
amend,  and  there  are  cases  in  which 
it  has  afterwards  permitted  an  amend- 
ment to  be  made,  but  in  such  a  case  a 
motion  to  amend  is  not  allowed  as  a 
matter  of  right.  Dan.  Ch.  Pr.  597  ; 
Smith  V.  Barnes,  Dick.  67  ;  Merchants' 
Bank  v.  Stevenson,  7  Allen  489.  The 
35th  Eq.  rule,  U.  S.  Courts,  provides 
that  if,  upon  the  hearing,  any  de- 
murrer or  plea  shall  be  allowed,  the 
court  may,  in  its  discretion,  upon 
motion  of  the  plaintiff,  allow  him  to 


amend  his  bill  upon  such  terms  as  it 
shall  deem  reasonable.  After  the 
allowance  of  a  partial  demurrer,  the 
complainant  may  have  an  order  to 
amend  his  bill,  or,  as  to  the  rest  of 
the  case  not  covered  by  the  demurrer, 
proceed  in  the  same  manner  that  he 
might  have  done  had  there  been  no 
demurrer.  Emans  v.  Emans,  1  3Ic- 
Cart.  120.  When  the  demurrer  is 
allowed  and  leave  is  given  to  amend, 
the  defendant  is  to  have  his  costs. 
Hicks  V.  Campbell,  4  C  E.  Gr.  187. 
When  plea  is  allowed,  injunction  is 
dissolved  absolutely.  Philips  v.  Lang- 
horn,  Dick.  148.  Amending  bill  after 
plea,  is  not  an  allowance  of  the  plea. 
Vere  v.  Glynn,  Id.  441,  Where  a 
defendant  files  a  plea  which  goes  to 
the  whole  equity  of  the  bill,  and  a 
motion  is  afterwards  made  in  the 
cause  which  confesses  the  truth  of  the 
plea,  the  court  may  deal  with  the 
cause  as  though  an  order  had  been 
made  allowing  the  plea.  Fulton  v. 
Greacen,  17  Stew.  Eq.  443. 


102  FOEMS   OF   PLEADINGS. 

Order  for  leave  to  amend  after  demurrer  sustained. 

{Title  of  cause.) 
This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  *  it  appearing  that   due  notice  of 
this  application  has  been  given  to  the  solicitor  of  the  defendant, 
,  {or  after  *)  and  after  hearing  ,  of  counsel  with 

the  defendant,  in  opposition  to  the  motion,  it  is,  on  &c.,  ordered 
that  the  complainant  have  leave  to  amend  his  bill  as  he  may  be 
advised,  and  that  the  said  defendant  have  days  to  file  a 

plea,  demurrer  or  answer  to  said  amended  bill  after  service  upon 
his  solicitor  of  a  copy  of  said  amended  bill. 

Order  overruling  demurrer  or  plea.(a)  It  appearing  to 
the  court  that  the  defendant  has  not  *  set  down  the  demurrer 
{or  "  plea  ")  filed  by  him  for  argument,  according  to  the  rules 
of  this  court,  {or,  if  party  sets  it  down  and  fails  to  argue  it,  say, 
after  *,  "brought  on  the  argument  of  the  demurrer"  {or  "plea.") 
It  is,  on  this  day  of  ,  &c.,  on  motion  of  ,  of 

counsel  with  the  complainant,  ordered  that  the  said  demurrer 
{or  "  plea ")  be  overruled,  with  costs,  and  that  the  defendant 
answer  the  complainant's  bill  within  twenty  days,  and  that  if  he 
fail  so  to  do,  the  complainant's  bill  be  taken  as  confessed  against 
him. 

Order  overruling  demurrer  or  plea  on  argument. 
This  cause  coming  on  to  be  heard  at  the  regular  term  of  this 
court,  in  the  presence  of  ,  of  counsel  with  the  complain- 

ant, and  ,  of  counsel  with  the  defendant,  and  the  Chan- 

cellor having  heard  the  arguments  of  the  counsel  of  the  respective 
parties  on  the  demurrer  {or  "  plea  ")  filed  in  the  above-stated 
cause  * :  It  is,  &c.,  {conclude  as  above.) 

(a)  If  a  plea  is  overruled  because  as  in  other  cases;  but  if  an  answer 
thedefendantought  to  have  demurred,  was  filed  with  the  plea  or  demurrer, 
he  will  get  leave  to  demur  on  motion  the  defendant,  upon  his  plea  or  de- 
fer the  purpose.  See  Mil.  PI.  190  murrer  being  overruled,  need  not  put 
If  a  plea  or  demurrer  be  overruled,  in  another  answer  till  the  plaintiff 
the  defendant  must  answer  the  whole  has  taken  exceptions.  Cotes  v.  Turnery 
bill,  and  the  ordinary  process  of  con-  Bunb.  124. 
tempt   issues  to   compel   an    answer, 


ORDERS   ON    PLEA   AND   DEMURRER. 


103 


Order  directing  plea  to  stand  for  answer.(a) 
{Title  of  cause.) 

The  plea  of  the  defendant,  ,  to  the  bill  of  complaint  in 

this  cause,  having  heretofore  come  on  to  be  argued,  and  counsel 
on  both  sides  having  been  heard  thereupon  :  It  is,  on  this,  &c., 
ordered  that  the  said  plea  do  stand  for  an  answer,  with  liberty 
to  the  complainant  to  except  thereto.  And  it  is  further  ordered, 
that  the  said  defendant  pay  to  the  complainant  his  costs  on  the 
said  plea  to  be  taxed. 


(a)  If,  upon  argument,  the  court 
considers  that  the  matter  offered  by 
way  of  plea  may  be  a  defence  or  part 
of  a  defence,  but  that  it  has  been  in- 
formally pleaded,  or  is  not  properly 
supported  by  the  answer,  so  that  the 
truth  is  doubtful,  it  will,  in  such  case, 
instead  of  overruling  the  plea,  direct 
it  to  stand  for  an  answer.  Dan.  Ch. 
Pr.  700 ;  Mit.  PI.  245.  The  defend- 
ant was  allowed  to  amend  his  plea  in 
twenty  days,  or  in  default  thereof  the 
plea  to  stand  for  answer,  with  liberty 
to  except.  Meeker  v.  Butler's  Exr, 
Sax.  204.  Where  a  plea  has  been 
ordered  to  stand  for  an  answer,  with 
liberty  to  except,  the  complainant 
must  file  his  exceptions  within  thirty 
days  from  the  date  of  the  order  ;  other- 
wise the  answer  will  be  deemed  suffi- 
cient. Bev.,  "  Chancery,"  ^  33.  The 
proceedings  upon  the  exceptions  are 
the  same  as  those  upon  exceptions  to 
answers  in  general.  Bnle  76;  see 
"Exceptions   to  Answer,"  infra.     The 


order  directing  the  plea  to  stand  for 
answer  should  provide  for  the  pay- 
ment of  costs:  an  application  for 
costs  made  subsequent  to  the  granting 
of  the  order  was  refused.  Yarnall  v. 
Bose,  2  Keen  326  ;  Howling  v.  Butler, 
2  Madd.  {Am.  Ed.)  469.  The  defend- 
ant pleaded  to  the  whole  bill ;  and  on 
arguing  the  plea,  it  was  ordered  to 
stand  for  an  answer,  without  saying, 
one  way  or  the  other,  whether  the 
plaintiff  might  except ;  the  plaintiff 
cannot  except ;  for  by  an  answer  is 
meant  a  sufficient  answer,  an  insuffi- 
cient answer  being  as  none.  Sellon  v. 
Lewen,  3  P.  Wms.  239.  If  a  plea  is 
to  stand  for  an  answer,  without  liberty 
to  except,  the  plaintiff  may  except  to 
the  rest  of  the  answer.  Coke  v.  Wil- 
cocks,  Mos.  73.  If  a  plea  is  ordered 
to  stand  for  an  answer,  the  defendant 
cannot  move  to  dissolve  the  injunction 
absolutely,  but  may  nisi.  Osborn  v. 
Cowper,  Id.  198. 


104 


FORMS   OF   PLEA.DINGS. 


OF   ANSWERS. 


Titles  of  answers. (o) 

{By  an  infant.){b)     The  answer  of  ,  an  infant  under 

the  age  of  twenty-one  years,  by  ,  his  guardian,  to  the  bill 

of  complaint  of  ,  complainant. 

{By  a  single  defendant.)     The  answer  of  ,  defendant, 

to  the  {or  "  amended  ")  bill  of  complaint  of  ,  complainant. 

Answer  by  adults  and  infants.  The  joint  and  several  answer 
of  and  and  of  and  ,  infants,  by  their 

guardian,  defendants  to  the  bill,  &c. 

{By  husband  and  wife.){c)     The  joint  answer  of  and 

,  his  wife,  defendants,  &c. 

{By  a  married  woman  answering  separately  by  leave  of  the 
court.){d)     The  answer  of  ,  the  wife  of  ("  the  defendant ") 

to  the  bill,  &c.,  here  put  in  by  leave  of  the  court. 


(a)  An  answer  must  be  filed  within 
•  twenty  days  from  the  time  of  filing  the 
'  order  for  overruling  the  plea  or  de- 
■  murrer,  or  within  thirty  days  from  the 
return-day  of  the  subpoena,  in  case  no 
plea  or  demurrer  be  filed,  unless  fur- 
ther time  be  granted.  Pamph.  L., 
1893,  p.  201.  Time  for  answering  may 
be  extended  on  reasonable  grounds 
by  a  special  application  ex  parte,  in 
the  discretion  of  the  court.  Where 
the  application  was  made  after  the 
time  for  answering  had  expired,  or 
after  a  former  order  for  time,  notice  of 
the  motion  was  required.  Norris  v. 
Kennedy,  12  Ves  66;  19  Ves.  112. 
Where  the  last  day  for  filing  an 
answer  falls  on  a  legal  holiday,  filing 
it  on  the  next  day  on  which  the 
clerk's  office  is  open  will  be  sufficient. 
Feuchtivanger  v.  McCool,  2  Stew.  Eq. 
151 ;  see  McEvoy  v.  Trustees,  11  Stew. 
Eq.  420. 

(6)  The  answer  of  an  infant  amounts 
to  nothing;  the  complainant  must 
prove  his  case  as  though  it  had  not 


been  filed.  1  Hoff.  Ch.  Pr.  233. 
Where  the  infant  is  a  married  woman, 
she  must  defend  by  guardian  ;  the  hus- 
band may  be  appointed  such  guardian. 
Cohnan  v.  Northcote,  2  Hare  147. 

(c)  If  the  husband  and  wife  join  in 
an  answer  as  co-defendants,  it  will  be 
considered  as  the  defence  of  the  hus- 
band alone,  and  it  will  not  aflfect  a 
future  claim  by  the  wife  in  respect  of 
her  separate  answer.  Bird  v.  Davis, 
1  McCart.Al%;  Johnson  v.  Vail,  Id. 
423.  The  joint  answer  of  husband 
and  wife  cannot  be  used  in  evidence 
against  the  wife.  Derby  v.  Derby,  6 
a  E.  Or.  51. 

{d)  See  ante  page  85.  And  see  also, 
as  to  liability  of  a  married  woman  to 
be  sued  in  her  own  name  apart  from 
her  husband,  Rev,,  "Married  Women," 
H  5, 10.  To  avoid  a  deed  of  a  married 
woman,  for  want  of  acknowledgment 
of  the  statutory  facts,  the  defence  must 
be  set  up  in  the  answer.  Marsh  v. 
Mitchell,  n  C.  E.  Gr.  497. 


ANSWER. 


105 


{By  a  lunatic  or  idiot,  <fcc.)(a)     The  joint  answer  of  , 

a  lunatic,  {or,  "idiot,"  or,  "person  of  unsound  mind,"  or,  "an 

habitual    drunkard,")    by  ,  his   guardian,  and   the   said 

,  {the  guardian,)  to  the  bill,  &c. 

{In  case  of  an  insujicient  answer.)     The  further  answer  of 

,  one  of  the  defendants  to  the  bill,  &c. 


Commencement  of  answers.(6)  This  defendant,  {or, 
"  these  defendants  respectively,")  answering  says  {or,  "  severally 
answering,  gay  ") — 


(a)  An  idiot  or  lunatic  (so  found 
by  inquisition)  must  defend  by  the 
guardian  of  his  estate,  who,  as.  well  as 
the  idiot  or  lunatic,  is  a  necessary 
party  to  the  suit.  3Iit.  PL  23,  82; 
Story's  Eq.  PL,  §  70.  Lunatics  (not 
so  found)  and  other  imbecile  persons 
must  defend  by  guardian  appointed 
for  the  purposes  of  the  suit.  Ld.  Red. 
103,  104.  If  the  guardian  dies,  an 
affidavit  of  the  continued  mental  inca- 
pacity of  the  defendant  must  be  made 
when  the  appointment  of  a  new 
guardian  is  applied  for.  Needham  v. 
Smith,  6  Beav.  130. 

(6)  Two  or  more  persons  may  join 
in  the  same  answer,  and  they  should 
do  so  when  their  interests  are  identi- 
cal. Where  the  same  solicitor  files 
separate  answers  for  each  of  several 
defendants  annecessarily,  the  costs 
thereof  will  be  disallowed.  1  Dan. 
Ch.  Pr.  730.  A  defendant  must 
answer  all  the  material  allegations 
and  charges  in  the  bill,  and  all  inter- 
rogatories founded  upon  and  inci- 
dental to  them,  Vreeland  v.  New 
Jersey  Stone  Co.,  10  C.  E.  Gr.  140. 
It  is  not  sufficient  for  the  defendant  to 
say  in  his  answer,  he  does  not  know  it 
or  does  not  believe  it;  such  state- 
ments, though  true,  do  not  contradict 
the  charges  in  the  bill.  Quackenbush 
v.  Van  Riper,  Sax.  47(5.    Where  there 


are  particular  charges,  they  must  be 
answered  particularly,  although  the 
general  answer  may  amount  to  a  full 
denial  of  such  charges.  Everly  v. 
Rice,  3  Gr.  Ch.  553.  The  defendant 
is  bound  to  state  in  his  answer  all  the 
circumstances  of  which  he  intends  to 
avail  himself  by  way  of  defence,  and 
to  apprise  the  complainant,  in  a  clear 
and  unambiguous  manner,  of  the 
nature  of  the  case  he  intends  to  set 
up.  Moores  v.  Moores,  1  C.  E.  Gr. 
275.  An  express  denial  of  a  fact  of 
which  the  defendant  admits  himself 
to  be  ignorant,  is  not  a  satisfactory 
denial  of  the  complainant's  equity. 
Bailey  v.  Stiles,  2  Gr.  Ch.  245.  The 
allegations  of  an  answer  not  responsive 
to  the  charges  in  the  bill  must  be 
sustained  by  proof.  Dickey  v.  Allen, 
1  Gr.  Ch.  40.  If  a  defendant  in  his 
answer  charge  certain  facts  to  exist 
on  which  he  intends  to  rely  for  his 
defence,  and  swears  to  the  answer  in 
the  ordinary  form,  he  swears  to  the 
truth  of  the  facts,  and  if  the  facts 
as  charged  are  not  true,  perjury 
may  be  assigned  upon  it.  Quacken- 
bush V.  Van  RijJcr,  Sax.  476.  When 
matter  is  set  up  in  the  answer  in 
avoidance  of  complainant's  claim,  it 
must  be  proved  otherwise  than  by 
the  answer.  Miller  v.  Wack,  Sax. 
204. 


106 


FOEMS   OF   PLEADINGS. 


By  infants  in  partition  suit.  These  defendants,  answer- 
ing by  their  said  guardian,  say,  that  they  are  strangers  to  all 
and  singular  the  matters  and  things  in  the  said  bill  of  complaint 
contained,  otherwise  tha;n  that  these  defendants  are  informed 
(that  ,  their  ,  died  seized  and  possessed  of  the  farm 

and  tract  of  land  mentioned  in  the  complainant's  bill,  and  that 
these  defendants)  have  some  interest  therein  ;  and  these  defend- 
ants, being  infants  of  tender  years,  submit  themselves  to  the 
judgment  of  this  honorable  court,  and  pray  that  their  interest 
may  be  protected  and  saved  to  them. 

Clerk,  Guardian. 


The  defendant  may  refuse  to  answer 
allegations  or  charges  which  are  im- 
material or  irrelevant  to  the  com- 
plainant's case  as  stated  in  the  bill ; 
the  complainant  will  not  be  entitled 
to  prove  such  at  the  hearing.  Wigram, 
Disc,  *65,  et  seq.  And  he  may  refuse 
to  answer  allegations  and  charges 
which  might,  if  answered  afHrma- 
tively,  subject  the  defendant  to  a 
criminal  prosecution,  or  to  a  penalty 
or  forfeiture — having  the  same  privi- 
leges in  those  respects  as  a  witness. 
Wigram  *61,  150,  195.  The  defend- 
ant having  completed  his  answer  as  to 
giving  discovery,  it  remains  for  him 
to  set  up  his  affirmative  defences ;  he 
is  not  confined  to  a  single  defence, 
but  may  set  up  as  many  as  he  can 
swear  to.  Wigram  *33,  91.  He  can- 
not avail  himself  of  any  matter  of  de- 
fence which  is  not  stated  in  his 
answer,  even  though  it  should  appear 
in  evidence.  Stanley  v.  Robertson,  1 
B.  &  M.  527;  Mead  v.  Coombs,  11  C. 
E.  Or.  173;  Chandler  v.  Herrick,  3 
Stock.  497.  An  answer  may  be 
amended  as  to  matters  of  form  or  sub- 
stance, in  the  discretion  of  the  court. 


Vandevere  v.  Reading,  1  Stock.  446 ; 
Huffman  v.  Hummer,  2  C.  E.  Gr.  269. 
The  motion  to  amend  must  be  made 
upon  petition  and  notice,  and,  in  a 
material  matter,  be  supported  by  affi- 
davits. Ibid.  An  amendment  to  set 
up  usury  will  not  be  allowed.  Marsh 
V.  Lasher,  2  Beas.  253.  Unless  the 
party  applying  for  such  amendment 
introduce  in  the  answer  an  offer  to 
pay  the  principal  actually  received, 
with  lawful  interest.  Hill  v.  Colic,  10 
C.  E.  Gr.  469.  Nor  to  amend  a  sup- 
plementary answer,  unless  the  matter 
be  new  and  the  delay  be  satisfactorily 
accounted  for.  Smallwood  v.  Levin,  2 
Beas.  123 ;  Burgin  v.  Giberson,  8  C. 
E.  Gr.  403.  Nor  to  set  up  as  a  de- 
fence that  the  defendants,  a  corpo- 
ration, were  acting  ultra  vires.  Third 
Av.  Sav.  Bank  v.  Dimock,  9  C.  E.  Or. 
26.  And  see,  also,  as  to  further  par- 
ticular amendments.  Bell  v.  Hall,  1 
Hal.  Ch.  49.  Where  the  amendment 
touches  the  merits  of  the  case,  a  sup- 
plemental answer  should  be  filed. 
Huffman  v.  Hummer,  2  C.  E.  Gr.  271, 
and  cases  cited. 


ANSWER. 


107 


Conclusions  of  answers.  And  this  defendant  humbly 
prays  to  be  hence  dismissed,  with  his  reasonable  costs  and 
charges  in  this  behalf  most  wrongfully  sustained,  (a) 


Answer    of   second    mortgagee.(6)     {Title  as  before.) 
This  defendant  admits  that  the  said  and  ,  his  wife, 

in  the  complainant's   bill   named,  did   make   and   execute  an 


(a)  Where  the  bill  calls  for  an 
answer  under  oath  and  it  is  given 
directly  responsive  to  the  bill,  it  is 
the  ordinary  rule  that  the  burden  is 
cast  on  the  complainant  to  prove  the 
charge  in  his  bill  by  more  than  one 
witness,  or  by  the  evidence  of  one 
witness  corroborated  by  facts  or  cir- 
cumstances equivalent  to  another  wit- 
ness. But  where  the  defendant  does 
not  rely  on  his  answer  alone,  but 
offers  himself  as  a  witness,  he  may 
refute  himself  by  his  own  evidence 
and  circumstances  added  may  over- 
come the  answer.  Morris  v.  White,  9 
Stew.  Eq.  324. 

(6)  Where  the  defendant  holding  a 
subsequent  or  prior  mortgage  neglects 
to  answer,  he  may  still,  upon  the 
reference,  lay  his  bond  and  mortgage 
before  the  master,  have  the  priority 
settled,  and  the  amount  due  reported  ; 
but  no  costs  are  in  that  case  allowed 
him.  In  cases  coming  under  the  pro- 
visions of  the  twenty-third  rule,  q.  v., 
no  rule  to  confirm  the  report  is  re- 
quired, nor  is  it  necessary  to  set  the 
cause  down  for  hearing  thereon ;  but 
a  decree  is  made  after  the  report  has 
been  on  file  four  days,  if  no  excep- 
tions be  filed.  Eule  23.  And  see  also, 
in  this  connection,  as  to  answers  that 
do  not  raise  a  defence,  but  are  the 
appropriate  subject  of  a  reference  to  a 
master,  rule  29.  Where  the  rights  of 
the  several  defendants  are  truly  stated 
in  a  bill  of  foreclosure,  it  is  not  neces- 
sary for  them  to  appear  and  answer  to 


protect  their  rights.  Merchants'  Ins. 
Co.  V.  Marvin,  1  Paige  bbl.  In  all 
cases  where  there  are  outstanding 
mortgage  encumbrances  in  the  hands 
of  defendants  to  the  bill  who  have 
answered,  there  should  be  an  order  of 
reference  to  a  master,  and  the  master 
should  issue  summonses  to  such  en- 
cumbrancers to  appear  before  him  on 
taking  the  account ;  and  whether  they 
have  answered,  or  permitted  the  bill 
to  be  taken  pro  confesso  against  them, 
it  is  the  proper  practice  to  direct  the 
master,  in  the  order  of  reference,  to 
ascertain  the  amount  of  all  the  en- 
cumbrances and  their  priority.  In  a 
foreclosure  suit,  no  claims  or  debts 
against  the  complainant  can  be  set  off 
against  the  mortgage  debt,  except  such 
as  the  parties  have  expressly  agreed 
to  be  considered  payment.  Dudley  v. 
Bergen,  8  C.  E.  Gr.  397.  A  fore- 
closure suit  is  not  a  proper  proceeding 
in  which  to  litigate  the  rights  of  a 
party  claiming  title  to  the  mortgaged 
premises  as  against  the  morigagor. 
Wilkins  v.  Kirkbride,  12  C.  E.  Or.  93. 
Matter  in  avoidance  of  .complainant's 
claim,  under  proceedings  to  foreclose 
his  mortgage,  must  be  proved  other- 
wise than  by  the  answer.  Fey  v.  Fey, 
12  a  E.  Gr.  213;  Coursen  v.  Can- 
field,  6  C  E.  Gr.  99.  The  defence  of 
an  alleged  error  in  his  deed  cannot 
avail  the  defendant  under  his  answer 
to  a  suit  for  foreclosure  of  a  purchase- 
money  mortgage.  Allen  v.  Boll,  10 
C.  E.  Gr.  164. 


108  FORMS   OF   PLEADINGS. 

indenture  of  mortgage,  of  such  date  and  of  such  purport  and 
effect  as  in  the  complainant's  said  bill  is  mentioned  and  set 
forth. 

And  he  further  admits  that  the  said  departed  this  life 

about  the  time  mentioned  in  the  said  bill  of  complaint ;  and  that 
letters  of  administration  were  in  due  form  of  law  granted  to  the 
said  complainants ;  and  that  the  said  ,  wife  of  the  said 

,  also  departed  this  life  at  or  about  the  time  mentioned 
in  the  said  bill  of  complaint. 

And  this  defendant,  further  answering,  admits  that  there  is 
due  to  the  said  complainant,  as  administrator  as  aforesaid,  the 
principal  money  in  the  bond  and  indenture  of  mortgage  men- 
tioned and  expressed,  and  set  forth  in  his  said  bill  of  complaint, 
together  with  arrears  of  interest,  to  this  defendant  unknown ; 
but  for  greater  certainty,  he  prays  that  reference  may  be  had  to 
the  same,  and  the  amount  distinctly  ascertained. 

And  this  defendant,  further  answering,  saith,  that  the  said 
having  become  indebted  to  this  defendant,  on  the 
day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  ,  made  and  executed  to  this  defendant  his  cer- 

tain bond,  bearing  date  the  day  and  year  last  aforesaid,  whereby 
he  became  bound  to  this  defendant  in  the  sum  of  dollars, 

to  be  paid  to  him,  his  executors,  administrators  or  assigns,  with 
a  condition  thereunder  written  {here  insert  condition  of  bond.) 

And  this  defendant,  further  answering,  says,  that  the  said 
,  in  order  further  to  secure  to  this  defendant  the  pay- 
ment of  the  said  sum  of  money,  with  interest,  on  the  same  day 
and  year  last  aforesaid,  by  a  certain  indenture  of  mortgage,  bear- 
ing even  date  with  the  said  bond,  granted,  bargained  and  sold 
to  this  defendant  all  the  lands  and  premises  mentioned  and 
described  in  the  said  bill  of  complaint  of  said  complainant, 
together  with  the  rights,  privileges,  hereditaments  and  appurte- 
nances thereunto  belonging ;  and  that  said  indenture  of  mort- 
gage contained  a  condition  that  the  same  should  be  void  upon 
the  payment  of  the  said  sum  of  dollars,  with  interest  at 

the  rate,  at  the  times  and  in  the  manner  in  the  condition  of  said 
bond  set  forth. 


ANSWER.  109 

And  the  said  defendant  further  says,  that  the  said  indenture 
of  mortgage  was  acknowledged  in  due  form  of  law,  and  recorded 
{or  ''  registered  ")  in  the  clerk's  {or  "  register's  ")  oftice  of  the 
county  of  ,  on  the  {set  out  date  of  registry  or  recording,) 

all  which  will  appear  by  reference  to  the  said  mortgage  (and  the 
record  or  registry  thereof)  now  in  the  possession  of  this  defend- 
ant, and  ready  to  be  produced  and  proved,  as  your  Honor  shall 
direct. 

And  this  defendant  further  says,  that  the  said  debt  of 
dollars,  so  as  aforesaid   due  this  defendant,  together  with  the 
interest  thereon,  still  remains  due  and  owing  to  this  defendant. 

And  this  defendant  consents  that  a  decree  be  made  by  this 
honorable  court  for  the  sale  of  the  said  land  and  premises  in  the 
foregoing  indenture  of  mortgage  mentioned,  and  set  forth  in  the 
complainant's  bill ;  and  that  out  of  the  moneys  thence  arising, 
this  defendant  may  be  {in  case  defendant  claims  priority  over 
complainant^ s  mortgage,  say  "  first ")  paid  the  full  amount  of 
the  principal  and  interest  moneys  so  due  as  aforesaid,  with  all 
reasonable  costs  and  charges  in  this  behalf  sustained. 

{Signature  of  defendants  solicitor.) 

{Annex  affidavit  in  proper  form.) 

Where  party  claims  the  same  benefit  of  defence  as 
if  the  bill  had  been  demurred  to  for  want  of  equity. 
And  this  defendant  submits  to  this  honorable  court,  that  all  and 
every  of  the  matters  in  said  complainant's  bill  mentioned  and 
complained  of  are  matters  which  may  be  tried  and  determined 
at  law,  and  with  respect  to  which  the  said  complainant  is  not 
entitled  to  any  relief  in  this  court ;  and  this  defendant  hopes  he 
shall  have  the  same  benefit  of  this  defence  as  if  he  had  demurred 
to  the  said  complainant's  bill.     And  this  defendant,  &c. 

General  form  of  disclaimer. (a)  The  answer  and  dis- 
claimer of  ,  one  of  the  defendants  to  the  bill  of  complaint 
of,  &c. 

(a)  Where  the  defendant  disclaims  of  it,  he  puts  in  a  disclaimer.  A  dis- 
all  right,  title  or  interest  to  the  matter  claimer  is  in  practice  accompanied  by 
in  demand  in  the  bill,  or  by  any  part       an   answer.     Being   accompanied   by 


110  FORMS   OF   PLEADINGS. 

This  defendant,  &g.,  in  answer  to  the  said  bill,  says,  that  he 
has  not  and  does  not  claim,  and  never  had  or  claimed  to  have 
any  right  or  interest  in  any  of  the  matters  in  question  in  this 
suit,  and  disclaims  all  right,  title  and  interest,  legal  and  equit- 
able, in  any  of  the  said  matters ;  and  he  further  says  that  if  he 
had  been  applied  to  by  the  complainant  before  the  filing  of  his 
bill,  he  would  have  disclaimed  all  such  right,  title  and  interest, 
and  he  therefore  submits  that  the  said  bill  ought  to  be  dis- 
missed as  against  him,  with  costs. 

(Signature  of  defendant.){a) 

Answer  in  partition.  (6) 

,  _.  ,      .  .  )       On  bill  for  partition,  &c. 

(Iitle  of  cause.)  >  . 

\  ^  ^  j  Answer. 

The  joint  and  several  answer  of  ,  and 

his  wife,  and  ,  defendants  to  the  bill  of  complaint  of 

,  complainant,  &c.,  {in  usual  form.) 

These  defendants  severally  answer  and  say,*  that  they  have 

been  informed  and  believe  it  to  be  true,  that  on  or  about  the 

day  of  ,  in  the  year,  &c.,  one  and  his  wife 

an  answer  it  is  put  in  upon  oath,  (a)  A  disclaimer  being  intended  to 
when  the  defendant  is  required  to  operate  as  a  release  must  be  signed  by 
answer  under  oath.  It  must  also  be  the  defendant  himself,  and  his  signa- 
signed  by  the  defendant,  and  in  no  ture  attested  by  some  person  corn- 
case  can  such  signature  be  waived  petent  to  be  a  witness.  It  need  not 
with  propriety,  since  no  record  will  be  signed  by  counsel  nor  be  put  in 
be  received  without  signature,  which  under  oath.  Dickerson  v.  Hodges,  16 
tends  to  prejudice  the  rights  of  the  Stew.  Eg.  45.  A  defendant  cannot 
defendant.  deprive  the  complainant  of  his  right 
If  a  party  has  disclaimed  in  ignor-  to  an  answer  by  filing  a  disclaimer, 
ance  of  his  rights  and  afterward  dis-  Isham  v.  Miller,  17  Stew.  Eq.  61. 
covers  the  same,  he  may  apply  to  the  (6)  If  there  are  questions  in  con- 
court  to  get  rid  of  the  disclaimer  upon  troversy  in  the  cause,  the  parties  will 
a  distinct  application,  supported  by  proceed  to  take  testimony ;  but  where 
affidavit,  establishing  a  special  case.  the  facts  charged  in  the  bill  are  ad- 
See  Dickerson  v.  Hodges,  16  Stew.  Eq.  mitted,  the  Chancellor  will  proceed  to 
45.  A  defendant  cannot  deprive  the  order  a  reference  in  the  usual  manner, 
complainant  of  his  right  to  an  answer  Wain  v.  Meirs,  12  C.  E.  Or.  77;  Smith 
by  filing  a  disclaimer.  Isham  v.  v.  Frenche,  1  Stew.  Eq.  115. 
Miller,  17  Stew.  Eq.  61. 


ANSWER.  Ill 

did,  by  deed  of  bargain  and  sale,  duly  made  and  executed  by 
them  under  their  respective  hands  and  seals,  sell  and  convey 
unto  the  said  complainant,  and  unto  his  brother,  ,  the 

husband  of  ,  one  of  these  defendants  and  the  father  of  the 

other  defendants,  and  to  their  heirs  and  assigns  forever,  the  said 
tract  of  land  and  premises  set  forth  and  particularly  described 
in  the  complainant's  said  bill  of  complaint. 

And  these  defendants,  further  answering  as  aforesaid,  admit 
it  to  be  true,  that  the  said  tract  of  land  and  premises  were  con- 
veyed to  the  said  complainant  and  the  said  without  any 
restrictive,  exclusive  or  explanatory  words  contained  in  said 
deed,  whereby  the  said  complainant  and  the  said  ,  under 
the  then  existing  laws  of  this  state,  took  and  held  the  said  lands 
as  joint  tenants,  and  that  the  said  complainant  and  the  said 
,  in  his  lifetime  and  until  the  time  of  his  death,  were 
seized  in  fee  simple  in  possession  of  the  said  tract  of  land,  as 
joint  tenants  in  undivided  moieties  or  half  parts,  and  that  at  the 
time  of  the  said  conveyance,  it  was  the  intention  of  the  parties 
thereto  that  the  said  tract  of  land  should  be  conveyed  to  the 
said  complainant  and  the  said  ,  as  tenants  in  common, 
and  not  as  joint  tenants,  and  that  the  consideration  money  was 
paid  jointly  and  equally  by  them. 

And  these  defendants,  further  answering,  say,  that  the  said 

,  on  or  about  the  day  of  ,  in  the  year,  &c.,  died 

intestate,  leaving  these  defendants,  his  widow  and  children,  him 

surviving,  as  in  the  complainant's  said  bill  of  complaint  set 

forth. 

And  these  defendants,  further  answering,  say,  that  the  said 
,  after  the  decease  of  her  father,  intermarried  with  , 

now  one  of  the  defendants,  as  is  stated  in  the  complainant's  bill, 
and  that  ,  one  of  the  children  of  the  said  ,  deceased, 

is  an  infant  under  (or  "  over )  the  age  of  ("  fourteen  ")  years,  and 
that  and  ,  the  other  children,  are  of  the  age  of 

twenty-one  years  and  upwards. 

And  these  defendants,  further  answering,  say,  that  they,  as 
well  as  the  said  complainant,  have  been  and  are  desirous  that 
a  fair  partition  and  division  of  the  said  tract  of  land  and  prem- 
ises should  be  made,  as  is  set  forth  in  the  complainant's  said  bill 


112  FORMS  OF   PLEADINGS, 

of  complaint,  and  for  that  purpose  these  defendants  join  in  the 
prayer  of  the  said  complainant,  that  a  commission  of  partition 
may  issue  out  of  and  under  the  seal  of  this  honorable  court, 
directed  to  proper  persons  as  commissioners  to  make  partition 
of  the  said  lands  and  premises,  under  the  control  and  direction 
of  this  honorable  court,  and  according  to  the  rules  of  law  and 
equity  regulating  cases  of  this  nature.  Or  that  in  case  it  shall 
appear  that  such  partition  cannot  be  made  without  great  preju- 
dice to  the  owners  of  the  said  premises,  that  the  same  may  be 
decreed,  by  this  honorable  court,  to  be  sold,  and  the  proceeds 
thereof  divided  among  these  defendants  and  the  several  parties 
to  this  suit,  according  to  their  respective  interests. 

{Solicitor  /or  defendants.) 

Form  of  verification. 

New   Jersey,  ss. —  ,  and  his   wife,  and 

,  the  defendants  named  in  the  foregoing  answer,  being 
duly  sworn  according  to  law,  on  their  oaths  severally  depose  and 
say — That  the  matters  and  things  set  forth  and  contained  in  the 
foregoing  answer,  so  far  as  relates  to  their  own  acts  and  deeds, 
are  true,  and  so  far  as  relates  to  the  acts  and  deeds  of  other  per- 
sons, they  believe  them  to  be  true.  (Signatures.) 

{Jurat.) 

Short  form  of  answer  in  partition.  {After  the  *  on 
page  110,  say,  "they  admit  that  the  rights  and  interests  of  the 
several  parties  complainant  and  defendant,  named  in  the  said 
bill  of  complaint,  in  and  to  the  several  tracts  or  parcels  of  land 
mentioned  and  described  in  said  bill,  are  truly  set  forth  and 
stated  in  said  bill.  And  these  defendants  submit  to  such  decree 
as  this  court  may  make  in  the  premises,  either  for  a  partition  of 
the  said  several  tracts  or  parcels  of  land,  or  for  a  sale  of  the 
whole  or  a  part  thereof,  in  case  said  tracts  or  parcels  of  land  are 
so  circumstanced  that  a  partition  thereof  cannot  be  made  without 
great  prejudice  to  the  owners  of  the  same. 


AFFIDAVIT   TO   ANSWER. 


113 


Common  form  of  affidavit  to  answer.(a) 

State  of  New  Jersey,    \ 

County(6)  of  i 

,  the  above-named  defendant,  being  duly  sworn,  [or 
"  affirmed  ")  on  his  oath  {or  "  affirmation,''  as  the  case  may  6e,) 
saith  *  — That  the  matters  and  things  set  forth  in  the  above 
answer,  so  far  as  relates  to  his  own  acts,  are  true,  and  so  far  as 
relates  to  the  acts  of  others,  he  believes  them  to  be  true. 

{Jurat.){d)  {Signature,){c) 


(a)  An  answer  verified  by  the  afl5- 
davit  of  the  agent  of  the  defendant  is 
not  sufficient.  The  complainant  is 
entitled  to  the  benefit  of  the  defend- 
ant's own  oath.  If  he  is  absent  from 
the  country,  it  may  be  taken  under  a 
commission  Stotesbury  v.  Vail,  1 
Beas.  394.  An  answer  not  verified  as 
the  practice  of  the  court  requires  will 
be  suppressed.  Pincers  v.  Robertson, 
9  C.  E.  Gr.  348.  The  affidavit  to  an 
answer  should  be  written,  either  at 
the  end  of  the  answer  or  of  the 
schedule  thereto.  Braithivaite's  Pr. 
342,  n.  (a).  It  should  not  be  written 
on  a  page  upon  which  no  part  of  the 
statements  in  the  answer  appears.  If 
there  are  many  defendants  who  are 
sworn  together,  one  affidavit  is  suffi- 
cient. If  the  defendants  are  sworn  at 
different  times,  there  must  be  separate 
affidavits  for  each  defendant,  or  each 
set  of  defendants  swearing.  1  Dan. 
Ch.  Pr.  746 ;  Binney's  Case,  2  Bland 
99.  Every  person  must  be  sworn, 
unless  he  shall  allege  that  he  is  con- 
scientiously scrupulous  of  taking  an 
oath.  Williamson  v.  Carroll,  1  Sarr. 
217.  Where  an  answer  shall  be  sworn 
to  by  a  defendant  out  of  this  state,  the 
oath  may  be  taken  before  a  master  in 
chancery  of  this  state,  or  a  notary 
public,  certified  under  his  seal,  and 
otherwise  in  compliance  with  the 
requirements  of  statute  or  before  any 
person   who   shall   be  authorized   by 


the  law  of  this  state  to  take  the 
acknowledgment  of  the  execution  of 
a  deed  for  lands  in  this  state,  at  the 
place  where  such  answer  shall  be 
sworn  to,  and  the  authoi'ity  to  such 
person  shall  be  certified  in  the  same 
manner  as  required  for  the  recording 
of  a  deed  acknowledged  before  him. 
Rule  62 ;  see  Feiichtwanger  v.  McCool, 
2  Stew.  Eq.  151. 

[h)  It  was  held  that  the  affidavit 
was  not  rendered  defective  by  the 
absence  of  a  statement  of  the  county 
where  it  was  taken,  though  the  officer 
before  whom  the  affidavit  was  taken 
was  a  county  commissioner.  Barnard 
V.  Darling,  1  Barb.  Ch.  218 ;  and  see 
Perkins  v.  Collins,  2  Gr.  Ch.  482. 
The  jurat  must  correctly  express  the 
time  when  the  answer  is  sworn.  1 
Dan.  Ch.  Pr.  746. 

(c)  The  defendant  must  sign  his 
name  or  put  his  mark  at  the  side  of 
the  jurat,  not  underneath  it.  Anderson 
V.  Slather,  9  Jur.  1085.  And  at  the 
foot  of  the  affidavit,  if  the  verification 
is  in  the  form  of  an  affidavit ;  if  it  be 
in  the  form  of  a  certificate,  his  name 
should  be  subscribed  to  the  answer. 
Pincers  v.  Robertson,  9  C.  E.  Gr.  349. 

(d)  The  person  before  whom  the 
answer  is  sworn  must  sign  his  name 
under  the  jurat,  to  which  should  be 
added  his  official  character.  Brailh- 
ivaite's  Pr.  342 ;  Westerjield  v.  Bried,  11 
C.  E.  Gr.  357.     For  form  of  verifica- 


114 


FORMS  OF   PLEADINGS. 


Affidavit  to  answer  of  guardian  ad  litem. (a) 

State  of  New  Jersey, 
County  of 

,  the  guardian  ad  litem  of  the  above-named  infant  de- 
fendant, being  duly  sworn,  on  his  oath  saith — That  he  has  read 


tion  of  answers  by  particular  classes 
of  persons,  see  1  Dan.  Ch.  Pr.  746, 
et  seq.  In  an  answer  by  a  husband 
and  wife,  the  latter  must  make  affi- 
davit thereto,  as  well  as  the  husband. 
Collard  v.  Smith,  2  Beas.  43.  If,  after 
the  answer  has  been  sworn,  there  is 
discovered  any  defect  in  the  formal 
parts,  such  as  the  title  or  jurat,  or  any 
unauthenticated  alteration  or  inter- 
lineation, the  answer  must  be  re-sworn, 
unless  the  complainant  consent  that 
the  answer  be  filed,  notwithstanding 
such  defect.  Dan.  Ch.  Pr.  743.  An 
answer  to  a  bill  in  equity,  complete  in 
every  respect,  cannot  be  treated  as  an 
answer  until  the  party  has  filed  it; 
and  if  the  defendant  dies  before  filing 
his  answer,  it  cannot  be  filed  by  his 
solicitor  as  an  answer.  Giles  v.  Eaton, 
54  Maine  186.  It  must  be  sworn  to 
before  it  is  filed.  Trumbull  v.  Gibbons, 
Oct.,  1819.  In  the  case  of  a  foreigner 
ignorant  of  the  English  language,  his 
answer  should  be  interpreted  to  him 
by  some  person  skilled  in  a  language 
understood  by  both.  The  practice  is 
for  the  interpreter  to  make  oath  be- 
fore an  officer  authorized  by  law  to 
administer  an  oath  to  an  answer,  that 
he  well  understands  the  foreign  lan- 
guage; that  he  has  truly,  distinctly 
and  audibly  interpreted  the  contents 
of  the  answer  to  the  defendant,  and 
that  he  will  truly  interpret  to  him  the 
oath  about  to  be  administered  to  liimj 
after  which,  the  ordinary  oath  is  ad- 
ministered to  the  defendant  through 
the  interpreter.  1  Dan.  Ch.  Pr.  746, 
747  ;  Hayes  v.  Lequin,  1  Hogan  274. 
"Where  the  complainant   in   his   bill 


prays  that  the  defendant  answer  with- 
out oath,  the  answer,  if  sworn  to,  is 
evidence  against  the  complainant  on 
a  motion  to  dissolve  the  injunction, 
{Bev.,  "Chancery,"'  ^  23,)  but  not  on 
the  hearing  of  the  cause.  Walker  v. 
Hill,  6  C.  E.  Gr  191.  An  answer 
put  in  without  oath  is  evidence  against 
the  defendant.  Hyer  v.  Little,  5  C. 
E.  Gr.  443;  Sweet  v.  Parker,  7  C.  E. 
Gr.  453 ;  Symmes  v.  Strong,  1  Stew. 
Eq.  131.  After  a  defendant  had  put 
in  his  answer  on  oath  to  a  bill  in  the 
usual  form,  the  complainant  was  not 
permitted  to  amend  his  bill  and  in- 
clude in  such  amendments  a  waiver 
of  the  answer  of  the  defendant  on 
oath,  so  as  to  deprive  him  of  the 
benefit  of  his  answer  to  the  amend- 
ments, so  far  as  it  might  be  responsive 
to  the  bill.  Burras  v.  Looker,  4  Paige 
227.  Where  one  of  several  defend- 
ants for  whom  an  answer  had  been 
prepared  to  be  put  in  jointly  with 
other  defendants,  refused  to  concur  in 
the  answer,  or  put  in  answer  alone, 
and  stood  out  process  of  contempt, 
leave  to  file  the  answer  as  the  answer 
of  the  defendants  who  had  been  sworn 
was  refused.  The  name  of  the  dis- 
senting defendant  was  struck  out,  and 
the  answer  re-sworn  by  the  other  de- 
fendants. Thatcher  v.  Lambert,  5  Hare 
228 ;  Vaughn  v.  Johnson,  1  Stock. 
173 ;  but  see  Young  v.  Clarksville  Co., 
12  C.  E.  Gr.  67 ;  Done  v.  Bead,  2  V. 
&  B.  310;  1  Dan.  Ch.  Pr.  732. 

(a)  Verification  is  not  required  in 
practice  when  the  clerk  of  the  court 
is  the  guardian  ad  litem. 


INTERROGATOEIES.  115 

the   foregoing   answer,  and   that    he   is   informed   and   verily 
believes  that  the  facts  stated  therein  are  true. 

Jurat  to  answer  of  a  corporation.(a)  [The  seal  of  a 
corporation  should  be  fixed  immediately  after  the  answer,  with  the 
signature  of  the  president  and  the  attestation  of  the  secretary 
attached,  and  then  follows  the  jurat  in  the  following  form ;] 

State  of  New  Jersey,    \ 

County  of  ,     ) 

The  answer  of  the  defendants,  the  Company,  was  taken 

this  day  of  ,  in  the  year  ,  before  me,  under 

the  common  seal  of  the  said  corporation,  as  by  their  said  seal, 
thereto  affixed,  appears. 

{Signature  of  officer.) 


INTERROGATORIES. 


Interrogatories  by  a  defendant  to  a  complainant 

after  answer. (6)     Interrogatories  to  be  exhibited  to  , 

one  of  the  complainants  in  a  certain  cause  depending  in  the 

(a)  A  corporation  aggregate  must  Ibid.;  Anon.,  1  Vern.  117.  For  di- 
answer  under  the  seal  of  the  cori^ora-  rections  as  to  the  officers  before  whom 
tion.  They  may  adopt  and  use  any  an  answer  out  of  this  state  may  be 
seal  pro  hac  vice.  Ransom  v.  Savings  sworn,  see  rule  62. 
Bank,  2  Beas.  212 ;  Haight  v.  Morris  {b)  After  the  defendant  shall  have 
Aqueduct,  4  Wash.  C.  C.  601.  Where  filed  his  answer,  he  may  exhibit  in- 
a  bill  was  filed  against  a  corporation  terrogatories  to  the  complainant,  which 
generally,  which  put  in  an  answer  shall  be  answered  by  him  on  oath  or 
under  their  corporate  seal,  the  court  affirmation,  and  such  answer  shall  be 
refused,  on  motion,  to  order  certain  evidence  in  the  cause  in  the  same 
officers  of  the  corporation  to  make  manner  and  to  the  same  effect  as  the 
oath  to  the  answer  so  filed.  Brumley  defendant's  answer  to  the  complain- 
V.  Westchester  Society,  1  Johns.  Ch.  366.  ant's  bill  is  evidence ;  and  if  the  com- 
Individual  members  of  a  corporation  plainant  shall  not  answer  such  inter- 
may  be  called  upon  to  answer  to  a  rogatories  by  the  time  appointed  by 
bill  of  discovery,  under  oath,  but  in  the  court,  he  shall  be  in  contempt, 
that  case  the  individuals  must  be  and  his  bill  shall  be  dismissed,  with 
named    as    defendants    in    the    bill.  costs.    Rev.,  "  Chancery,"  §  44.    If  the 


116 


FORMS   OF    PLEADINGS. 


Court  of  Chancery  of  New  Jersey,  wherein  is  complainant, 

and  and  are  defendants,  on  the  part  and  behalf  of 

the  said  defendant : 

First  Interrogatory. — Were  you,  or  were  you  not,  in  the  pos- 
session and  occupancy  of  the  mansion-house,  late  of  ,  de- 
ceased, after  his  death  ?  If  yea,  how  long,  in  what  manner,  by 
whose  authority,  and  upon  what  terms  did  you  occupy  and 
enjoy  the  same? 

{And  so  on  through  the  interrogatories,  and  conclude) — Declare 
the  truth  of  the  several  matters  in  the  foregoing  interrogatories 
inquired  after,  according  to  the  best  of  your  knowledge,  remem- 
brance, information  and  belief. 

{Solicitor  and  of  counsel  with  defendants.) 


defendant  intends  to  exhibit  interrog- 
atories to  the  complainant,  he  shall 
file  the  same  and  serve  a  copy  thereof 
within   fifteen   days   after   filing    his 
answer,  and   not  afterwards,  without 
leave   of    the    Chancellor;    and    the 
complainant  shall  answer   the  inter- 
rogatories  within    thirty   days    after 
service  thereof,  unless  the  Chancellor 
shall  allow  further  time  for  answering 
the  same;    and   if  the   complainant 
except  to  the  interrogatories,  he  shall 
tile   his   exceptions  within   ten   days 
after   service   of    the   interrogatories, 
and   enter  a  rule  of  course  with  the 
clerk  to  refer  them  to  a  master,  who 
shall  decide  and  report  thereon  within 
fifteen  days  after  they  are  filed,  but  an 
appeal  to  the  Chancellor  from  such 
report  shall  be  allowed  if  1  aken  within 
ten    days    after    filing    the    master's 
report,  and  the  Chancellor  shall,  upon 
ten  days'  notice  given  by  either  party, 
hear  and  determine  the  same.     Costs 
are  awarded  to  the  prevailing  party. 
Rule  77.     It  seems  that   no  order  is 
necessary  to  enable  the  defendant  to 
file  the  interrogatories.     Braithwaite's 
Pr.  40     An  order  to  compel  the  com- 
plainant   to    answer    interrogatories. 


filed  out  of  time,  will  not  be  granted 
unless   the  defendant    can   show,   by 
afiidavits,    sufiicient    excuse    for    his 
neglect  to  file  his  interrogatories  pur- 
suant  to   the   rule.     Application   for 
such    an   order    must    be   on   notice. 
Phelps  V.  Curtis,  1   Gr.  Ch.  387.     In- 
terrogatories for  the  examination  of  a 
plaintiff   are   on   a  different    footing 
from  those  for  the  examination  of  a 
defendant,   in    this    respect:    that    a 
plaintifi"  is  not  entitled  to  discovery  of 
the  defendant's  case,  but  a  defendant 
may  ask  any  question  tending  to  de- 
stroy the  plaintift^'s  claim.     Hoffman 
V.  Pustil,  L.  E.,  4  Ch.  Ap.  673.    The 
practice  of  the  court  in  England,  with 
reference  to  excepting  to  an  answer, 
for  insufficiency  or  for  scandal,  extends 
and  is  applicable  to  answers  put  in  to 
such  interrogatories ;  but  in  determin- 
ing  the   materiality  or  relevancy  of 
any  such  answer,  or  of  any  exceptions 
thereto,  the  court  has  regard  to  the 
statements  contained  in  the  original 
bill,  and  in  the  answer,  which  may 
have  been  put  in  thereto  by  the  de- 
fendant exhibiting  the  interrogatories. 
2  Dan.  Ch.  Pr.  1555  ;  and  see  rule  76. 


PROCEEDING    AT   LAW. 


117 


Order  that  the  complainant  elect  to  proceed  at  law 
or  in  equity  .(a)  Upon  opening  the  matter  to  the  court  by 
,  of  counsel  with  the  defendants,  it  appearing  that  the 
complainant  prosecutes  the  defendants  both  at  law  and  in  this 
court,  for  one  and  the  same  matter,  whereby  the  defendants  are 
doubly  vexed,  and  put  to  unnecessary  costs  and  expenses :  It 
is  thereupon,  on  this  day  of  ,  in  the  year,  &c., 

ordered,  that  the  complainant,  within  (thirty)  days  after  service 
upon  him  or  his  solicitor  of  a  copy  of  this  order,  elect  whether 
he  will  proceed  at  law  in  the  suit  brought  by  him  against  the 
defendants,  or  in  this  court  upon  his  bill ;  and  if  he  elects  to 
proceed  at  law,  or  if  he  neglects  to  file  such  election  within  the 
said  (thirty)  days,  the  bill  in  this  cause  shall  thereupon  stand  dis- 


(a)  Where  the  complainant  is  suing 
both  at  law  and  in  equity  at  the  same 
time,  for  the  same  matter,  the  defend- 
ant is  entitled  to  an  order  that  the 
complainant  elect  whether  he  will 
proceed  with  the  suit  in  equity,  or 
with  the  action  at  law.  Dan.  Ch.  Pr. 
815;  Mit.  PL  20i;  Carlisle  v.  Cooper, 
3  C.  E.  Gr.  241.  The  complainant 
will  not  be  put  to  his  election 
unless  the  suit  at  law  is  for  the  same 
cause,  and  the  remedy  afforded  co- 
extensive and  equally  beneficial  with 
the  remedy  in  equity.  Way  v.  Bra- 
gaw,  1  C.  E.  Gr.  214.  If  parties  bring 
suit  in  another  state,  and  while  that 
suit  is  pending  bring  another  action 
here  for  the  same  cause,  during  the 
progress-  of  which  they  obtain  judg- 
ment in  the  first  suit,  it  may  be  pleaded 
in  bar  to  the  action  brought  here. 
Barnes  v.  Gibhs.  2  Vr.  318.  The 
complainant  will  not  be  put  to  his 
election  in  Avhich  court  he  will  proceed 
until  after  the  defendant  has  answered. 
Conover's  Ei^rs  v.  Conover,  Sax.  409. 
If  the  defendant's  answer  is  not  ex- 
cepted to,  or  set  down  for  hearing  on 


former  exceptions,  he  may,  on  an 
allegation  that  the  complainant  is 
prosecuting  him  in  this  court,  and  also 
at  law,  for  the  same  matter,  obtain,  at 
the  expiration  of  eight  days  after  his 
answer,  or  further  answer  is  filed,  as 
of  course,  on  motion  or  petition,  the 
usual  order  for  the  complainant  to 
make  his  election  in  which  court  he 
will  proceed.  Dan.  Ch.  Pr.  816.  The 
order  must  be  served  on  the  com- 
plainant or  his  solicitor  and  attorney- 
at-law;  and  within  the  time  limited 
by  the  order,  the  complainant  must 
make  his  election ;  and  if  he  elect  to 
proceed  in  equity,  then  his  proceed- 
ings at  law  are  thereby  stayed  by  in- 
junction ;  but  if  he  elect  to  proceed  at 
law,  or  in  default  of  his  making  his 
election  within  the  specified  lime, 
then  his  bill  from  thenceforth  stands 
dismissed,  with  costs  to  the  defendant. 
Dan.  Ch.  Pr.  816.  The  court  will 
allow  the  party  a  reasonable  time  to 
make  his  election.  Broeker  v.  Martin, 
3  Yerger  55 ;  Rogers  v.  Vosburg,  4 
Johns.  Ch.  84;  Ld.  Bacon's  Orders, 
No.  18. 


118 


FORMS   OF   PLEADINGS. 


missed,  with  costs ;  and  if  he  elects  to  proceed  in  this  court,  it 
is  then  further  ordered  that  he  proceed  no  further  in  the  said 
suit  at  law,  without  leave  of  this  court,  (a) 

Order  to  speed  cause.(6)  It  appearing  to  the  court  that 
the  defendants  in  the  above-stated  cause  filed  their  answer  to  the 
complainant's  bill  on  the  day  of  ,  last  past,  and 


(a)  It  is  not  the  practice  to  issue  an 
injunction,  the  service  of  the  order 
being  sufficient.  Braithwaite' s  Pr.  229. 
Where  the  defendant  has  obtained 
such  order  on  suggestion,  the  plaintiff 
may  move,  on  notice  to  the  defendant, 
to  discharge  it,  either  for  irregularity 
or  upon  the  merits  confessed  in  the 
answer  or  proved  by  affidavit.  If, 
upon  such  motion,  there  should  be 
any  doubt  as  to  whether  the  suit  in 
equity  and  the  action  at  law  are  for 
the  same  matter,  it  is  the  usual  course 
to  direct  an  inquiry  into  that  fact. 
Mousley  v.  Basnett,  1  V.  &  B.  382,  n. 
If  the  common  order  cannot,  under 
the  circumstances,  (the  common  mo- 
tion cannot  be  made  until  the  answer 
has  been  put  in)  be  obtained,  it  seems 
the  court  will,  if  necessary,  make  a 
special  order,  and  grant  an  injunction 
in  the  meantime.  If  the  plaintiff 
requires  further  time  to  make  his 
election,  he  must  apply  to  the  court 
by  motion,  on  notice,  to  have  the  time 
extended.  After  decree,  it  is  not  the 
practice  to  make  an  order  to  elect. 
Dan.  Ch.  Pr.  817. 

(6)  Every  cause  shall  be  set  down 
for  hearing  at  the  next  stated  term 
after  the  filing  of  the  replication,  or, 
on  failure  thereof,  the  complainant's 
bill  shall  be  dismissed,  with  costs, 
unless  the  court,  on  just  cause  and 
reasonable  terms,  allow  further  time 
for  the  hearing.  If  there  be  not  fif- 
teen days  between  the  filing  of  the 
replication  and  the  next  stated  term, 


then  the  hearing  shall  be  liad  at  the 
subsequent  stated  term,  or  at  a  special 
term.     Rev.,  "  Chancery,"  |  47.     The 
advantages   of  this   provision  of  the 
statute  are  seldom  accorded  to  the  de- 
fendant in  practice,  until  he  has  first 
taken  an  order  on  the  complainant  to 
speed  his  cause.     The  order  may  be 
taken  at  any  time  after  the  complain- 
ant is  in  default,  and  be  made  return- 
able  in   terra   or   vacation,   on    such 
notice  as  the  court  may  appoint;  and 
if  the  complainant  does  not  proceed 
or   show   cause,   as   required   by   the 
order,  the  defendant,  upon  producing 
proof  of  the  service  of  the  order,  will 
be  entitled  to  move  for  the  dismissal 
of  the  bill.     Orders  to  speed  the  cause 
may  be  resorted  to  at  any  stage  of  the 
cause;    they    are    generally    granted 
ex  parte.     The  mere  filing  of  a  repli- 
cation is   not   a  compliance  with   an 
order  to  speed  the  cause.     When  the 
defendant  took  such  an  order,  and  the 
complainant  filed  his  replication,  and 
then  took  no  further  step,  it  was  held 
that    the   defendant   was   entitled   to 
have  the  bill  dismissed  at   the  next 
stated  term,  because  the  complainant 
had    not,    in    compliance    with    the 
statute,  brought  his  cause  to  a  hearing 
at  that  time.      Wesl  v.  Paige,  1  Stock. 
203.     The   discretion    given    to   the 
Chancellor  under  the  statute  will  not 
be  exercised  in  a  case  of  gross  laches 
and  long  delay.     Shipman  v.  Cook,  1 
C.  E.  Or.  251 ;  Hoagland  v.  Hoagland, 
1  Gr.  Ch.  511. 


PROCEEDINGS  BEFORE  REPLYING. 


119 


that  the  said  complainant  has  not,  since  that  time,  taken  any 
proceeding  in  his  said  cause :    It  is,  on  this  day  of  , 

&c.,  on  motion  of  ,  of  counsel  with  the  said  defendants, 

ordered  that  the  said  complainant  do  speed  his  cause  on  or 
before  the  first  day  of  the  next  stated  term  of  this  court,  or  show 
cause  why  his  said  bill  be  not  dismissed,  with  costs;  and  that  a 
copy  of  this  order  be  served,  within  days  from  the  date 

thereof,  on  the  said  complainant  or  his  solicitor. 


PROCEEDINGS    BY    COMPLAINANT    BEFORE 
REPLYING. 


Exceptions  to  an  answer  for  insufficiency.(a) 

(Title  of  cause.) 

Exceptions  taken  by  the  said  complainant  to  the  answer  of 
the  defendant  to  the  bill  of  complaint  in  this  cause,*  for  insufii- 
ciency. 


(a)  If  the  complainant,  upon  an 
examination  of  the  answei",  finds  that 
it  contains  scandalous  or  impertinent 
matter,  or  that  it  does  not  sufficiently 
answer  the  interrogatories,  he  may 
file  exceptions  to  it.  Exceptions  are 
allegations  in  writing,  stating  the  par- 
ticular points  or  matters  in  respect  to 
which  the  complainant  considers  the 
answer  scandalous  or  impertinent,  or 
those  interrogatories  to  which  he 
thinks  there  is  not  sufficient  answer 
given.  1  Dan.  Ch.  Pr.  758 ;  rule  72. 
Each  exception  to  an  answer  should 
be  confined  to  a  distinct  question,  al- 
though the  interrogatory  as  numbered 
may  contain  several  questions ;  at 
least  it  ought  to  be  so  confined  if  there 
is  any  ground  for  the  defendant  to 
contend  that  he  has  answered  a  part 


of  the  interrogatory.  Bennett  v.  Ham- 
lin, 2  Dick.  Ch.  Rep.  326  An  excep- 
tion for  insufficiency  may  be  allowed 
as  to  part  and  overruled  as  to  part. 
Ibid.  Liberty  was  given  to  amend  an 
exception  after  hearing  thereupon, 
and  defendant  required  to  answer 
the  exception  as  amended  Ibid. 
Scandal  consists  in  the  allegation  of 
anything  which  is  unbecoming  the 
dignity  of  the  court  to  hear,  or  is 
contrary  to  good  manners,  or  which 
charges  some  person  with  a  crime  not 
necessary  to  be  shown  in  a  cause. 
Any  unnecessary  allegation,  bearing 
cruelly  upon  the  moral  character  of 
an  individual,  is  also  scandalous.  1 
Dan.  Ch.  Pr.  347.  Impertinences  are 
described  by  Lord  Chief  Baron  Gil- 
bert to  be  "  where  the  records  of  the 


120 


FORMS   OF   PLEADINGS. 


First  Exception.  For  that  the  said  defendant  hath  not,  in  and 
by  his  said  answer,  according  to  the  best  of  his  knowledge, 
remembrance,  information  and  belief,  answered  and  set  forth 
whether,  &c. 


court  are  stuffed  with  long  recitals  or 
with  long  digressions  of  matter  of  fact, 
which  are  altogether  unnecessary  and 
totally  immaterial  to  the  matter  in 
question :  as  where  a  deed  is  unneces- 
sarily set  forth  in  hcec  verba."  Id. 
349.  The  same  rules  for  distinguish- 
ing scandal  or  impertinence,  when 
comprised  in  a  bill,  apply  to  answers 
and  any  other  pleadings,  and  the 
practice  of  the  court  with  regard  to 
exceptions  to  answers  for  insufficiency 
is  the  same  as  that  with  respect  to 
exceptions  to  bills  and  other  plead- 
ings for  scandal  or  impertinence. 
Rule  76 ;  see  'Exceptions  to  Bill." 
The  exceptions  should  adopt  the  lan- 
guage of  the  interrogatories.  In  some 
cases,  however,  where  the  difference 
has  not  been  a  substantial  one,  the 
court  has  held  the  exceptions  suffi- 
cient. Woodroffe  v.  Daniel,  10  Sim. 
243 ;  Brown  v.  Keating,  2  Beav.  581. 
Exceptions  to  an  answer  for  insuffi- 
ciency should  be  entitled  in  the  cause, 
and  must  specify  that  the  answer  com- 
plained of  was  an  answer  to  the  bill. 
It  is  unnecessary  to  set  forth  the  tenor 
or  scope  of  the  bill,  and  the  substance 
of  the  answer,  but  the  complainant 
proceeds  at  once  to  point  out,  in  the 
exceptions,  specifically,  the  particular 
points  or  matters  in  the  bill  which 
remain  unanswered,  or  are  imperfectly 
answered,  by  separate  exceptions,  ap- 
plicable to  each  part.  1  Dan.  Oh-  Pr. 
763 ;  Stafford  v.  Brown,  4  Paige  88 ; 
Brooks  V.  Byam,  1  Story  297.  Objec- 
tions for  insufficiency  may  be  taken  to 
the  answer  of  a  corporation  or  to  an 
answer    oath     to    which     has     been 


waived.  Peed  v.  Cumberland  Ins.  Co., 
9  Slew.  Eq.  393.  Separate  exceptions 
must  be  taken  to  the  answer  of  each  of 
several  defendants,  and  in  case  of  a 
joint  answer  of  two  defendants,  one  of 
whom  has  died,  exceptions  are  taken 
to  the  answer  as  being  that  of  the 
survivor  only.  Lord  Herbert  v.  Pusey, 
Dick.  25.T ;  Northcote  v.  Northcote,  Id. 
22;  see  S.  C,  Coll.  P.  C.  288;  Sydolph 
V.  Monkston,  Id.  609.  All  exceptions 
to  an  answer,  as  well  for  impertinence 
or  scandal  as  for  insufficiency,  must  be 
taken  at  the  same  time,  and  referred 
by  one  rule  to  the  same  master.  Rule 
72.  Separate  exceptions  to  the  same 
matter,  the  one  for  scandal  and  the 
other  for  impertinence,  cannot  be 
allowed ;  as  nothing  in  a  pleading  can 
be  considered  as  scandalous,  which  is 
not  also  impertinent.  Mclntyre  v. 
Union  College,  6  Paige  240.  The  ex- 
ceptions must  be  filed  within  thirty 
days  after  the  expiration  of  the  time 
limited  or  granted  for  filing  the 
answer.  Rev.,  "  Chancery,"  §  33.  But 
where  the  answer  is  not  regularly 
filed,  the  exceptions  may  be  filed  at 
any  time  before  replication.  Knoides 
v.  Gwinnvp,  Jan.,  1828.  If  the  de- 
fendant file  a  demurrer  and  answer, 
the  complainant  cannot  proceed  on 
the  answer  until  the  demurrer  has 
been  argued  or  disposed  of.  Rev., 
"  Chancery,"  §  30.  Where  plea  and 
answer  were  filed,  and  the  plea  was 
overruled,  it  was  held  that  the  time 
for  filing  exceptions  ran  from  the  time 
of  overruling  the  plea.  Esdaile  v. 
Molyneux,  2  Coll.  642;  11  Jur.  201. 
Where  an  answer  accompanied  a  plea. 


EXCEPTIONS  TO   ANSWER. 


121 


Second  Exception.  For  that  the  said  defendant  hath  not,  in 
and  by  his  said  answer,  in  manner  aforesaid,  answered  and  set 
forth  whether,  &c. 

{And  so  with  respect  to  the  other  exceptions,  using  the  words  of 
the  interrogatory  not  answered.) 

In  all  or  some  of  which  particulars,  the  said  complainant  is 
advised  that  the  said  answer  of  the  defendant  is  evasive  and 
insufficient,  and  ought  to  be  amended,  and  humbly  prays  that 
the  defendant  may  be  compelled  to  amend  the  same,  and  to  put 
in  a  full  and  sufficient  answer  to  the  complainant's  bill. 

(Signature  of  solicitor  and  counseL){a) 

Exceptions  to  an  answer  for  scandal  and  imperti- 

nence.(6) 

{Title  of  cause.) 

Exceptions,  &c.,  {as  in  preceding  form  to  *,  then  "for  scandal 
and  impertinence.") 


and  the  latter  was  overruled,  the  com- 
plainant was  allowed  twenty  days  to 
except  to  the  answer.  Suynmers  v. 
Murray,  2  Edw.  205.  If  the  defend- 
ant desires  to  prevent  the  exceptions 
being  set  down  for  hearing,  he  must 
submit  to  them  within  six  days  after 
service  upon  him  or  his  solicitor  of  a 
copy  of  the  exceptions,  give  notice  of 
the  submission  to  the  complainant's 
solicitor  and  pay  the  costs  of  the 
exceptions.     Rule  73. 

(a)  Exceptions  to  an  answer  must 
be  signed  by  counsel.  Hitchcock  v. 
Rhodes,  15  Stew.  Eg.  495. 

(6)  Each  exception  to  an  answer 
should  be  confined  to  a  distinct  ques- 
tion, although  the  interrogatory  as 
numbered  may  contain  several  ques- 
tions ;  at  least  it  ought  to  be  so  con- 
fined if  there  is  any  ground  for  the 
defendant  to  contend  that  he  has 
answered  a  part  of  the  interrogatory. 
Bennett  v.  Bandin,  2  Dick.  Ch.  Rep. 
326.  An  exception  for  impertinence 
fails  if  any  part  of  the   passage   in- 


cluded in  it  be  not  impertinent. 
Wagstaff  v.  Bryan,  1  Russ.  &  My.  30. 
An  exception  for  impertinence  must 
be  supported  in  toto;  and  if  it  includes 
any  part  of  the  answer  which  is  rele- 
vant and  proper,  the  exception  must 
fail  altogether.  Van  Rensselaer  v. 
Brice,  4  Paige  174.  Where  excep- 
tions for  impertinence  would  mutilate 
the  answer  of  the  defendant  unneces- 
sarily, if  allowed,  by  breaking  up 
sentences  or  clauses  which  ought  to 
stand  or  fall  together,  the  exceptions 
should  be  disalloAved.  Franklin  v. 
Keeler,  4  Paige  382.  Exceptions  for 
scandal  or  impertinence  must  point 
out  the  exceptionable  matter  with 
sufficient  certainty  to  enable  the  ad- 
verse party  and  the  officers  of  the 
court  to  ascertain  what  particular 
parts  of  the  pleading  or  proceeding 
are  to  be  stricken  out  if  the  exceptions 
are  allowed.  Whitmarsh  v.  Campbell, 
1  Paige  645.  The  court  should  be 
especially  clear  that  the  impertinent 
matter  is  such  as  ought  to  be  struck 


122 


FORMS   OF   PLEADINGS. 


First  Exception.  For  that  the  whole  of  the  paragraph  of  the 
said  answer  {here  introduce  language  to  identify  the  paragraph 
referred  to)  is  scandalous. 

Second  Exception.    For  that  the  said  answer  is  impertinent 

from  and  including  the  word  ,  in  the  line  of  the 

page,  down  to  and  including  the  word  ,  in  the 

line  of  page. 

In  all  which  particulars  this  exceptant  excepts  to  the  said 

answer  put  in  by  the  defendant  to  the  said  complainant's  bill  as 

scandalous  and  impertinent,  and  he  humbly  insists  that  the  same 

ought  to  be  expunged  from  the  said  answer. 

{Signature  of  solicitor  and  counsel.) 

Rule  referring  exceptions  (a) 

{Title  of  cause.)  >  {Date  of  entry  of  rule.) 

The  complainant  having  filed  exceptions  to  the  answer  put  in 
by  the  defendant  to  the  complainant's  bill  in  this  cause,  it  is 
ordered  that  it  be  referred  to  ,  one  of  the  masters  of  this 


out,  for  the  reason  that  the  error,  on 
the  one  side,  is  irremediable,  on  the 
other  not.  Dodd  v.  Wilkinson,  15  Stew. 
Eq.  647.  The  filing  exceptions  to  an 
answer  constitutes  no  technical  objec- 
tion to  the  dissolution  of  an  injunc- 
tion. The  court  will  look  into  them 
merely  to  ascertain  whether  they 
relate  to  the  points  of  the  bill  on 
which  the  injunction  rests.  Robert  v. 
Hodges,  1  C.  E.  Gr.  299.  A  motion 
to  dissolve  an  injunction  and  the 
hearing  of  the  exceptions  were  taken 
up  together  and  determined  at  the  same 
time.  Salmon  v.  Clagett,  3  Bland  125. 
It  has  been  held  that  exceptions 
will  not  lie  to  the  answers  of  cor- 
porations, because  they  are  not  evi- 
dence. Wallace  v.  Wallace,  July,  1828; 
but  see  Heed  v.  Cumberland  Ins.  Co., 
9  Stew.  Eq.  393.  The  answer  of  an 
infant  by  his  guardian  cannot  be  ex- 
cepted  to   for   insufficiency.     Leggeit 


V.  Sellon,  3  Paige  84.  Where  a  plea 
is  ordered  to  stand  for  an  answer,  it  is 
to  be  deemed  sufficient,  so  far  as  it 
covers  the  bill ;  but  the  complainant 
may  still  except  to  the  residue  of  the 
answer;  and  he  may  except  to  the 
plea,  but  only  by  express  leave  of  the 
court.  Kirby  v.  Taylor,  6  Johns.  Ch. 
242.  It  is  a  general  rule  that  after  an 
order  to  amend,  the  right  to  except  to 
the  answer  to  the  original  bill  is 
waived.  Irving  v.  Viana,  1  iPCle.  & 
Y.  563. 

(a)  If  the  defendant  does  not  sub- 
mit to  the  exceptions,  the  complainant 
may,  at  the  expiration  of  the  time 
mentioned  in  the  seventy-third  rule, 
enter  a  rule,  either  in  term  time  or 
vacation,  referring  them  to  a  master 
of  the  court,  who  shall  decide  and 
report  upon  them  within  thirty  days 
after  they  are  filed,  and  if  either  party 
be  dissatisfied    with    the   report,   an 


EXCEPTIONS  TO   ANSWER.  123 

court,  to  look  into  the  complainant's  bill,  the  answer  thereto  and 
the  said  exceptions,  and  examine  and  report  to  this  court,  with 
all  convenient  speed,  whether  the  said  exceptions  be  well  taken 
or  not. 

Entered  by  ,  solicitor  for  the  complainant. 

By  the  court. 

{Signature  of  clerk.) 

Rule    referring    exceptions    for    impertinence    or 
scandal,  under  rule   75. 

{Title  of  cause.)  >  {Date  of  rule.) 

The  complainant  having  filed  exceptions  to  the  answer  put  in 
by  the  defendant,  ,  to  the  complainant's  bill  in  this  cause, 

for  insufficiency  and  for  impertinence  and  scandal,  {or,  "  for 
insufficiency  and  impertinence  or  scandal,"  as  the  case  may  be;) 
and  the  said  defendant  having  submitted  to  answer  the  said 
exceptions  for  insufficiency,  but  given  no  notice  at  the  same  time 
that  he  consents  to  have  the  parts  of  the  said  answer  excepted  to 
for  impertinence  or  scandal  expunged  :  It  is  ordered  that  it  be 
referred,  &c.,  whether  the  said  exceptions  to  the  said  answer  for 
impertinence  or  scandal  be  well  taken  or  not. 

Master's  report  on  exceptions.(a) 

{Title  of  cause.) 
In  pursuance  of  a  rule  of  the  Court  of  Chancery  entered  in 
the  above  cause,  bearing  date  on  the  day  of  last, 

appeal  may  be  taken  therefrom  to  the  (a)  In  proceedings  upon  exceptions 

Chancellor,  who  shall  hear  and  deter-  for  insufficiency  before  the  master,  the 

mine  the  same  at  the  next  term,  or  at  course  is  for  the  complainant's  counsel 

such  time  as,  upon  the  apjjlication  of  to  state  the  subject,  shape  and  prayer 

either     party,    shall     be     appointed.  of  the  bill,  and  to  read  the  first  excep- 

Eev.,  "  Chancery,"  §  34 ;  rule  12.    For  tion.     The  defendant's   counsel   then 

the   order  of  proceeding   before   the  reads  from  the  answer  such  parts  as 

master  on  the  hearing  of  the  excep-  he  insists  is  an  answer  thereto,  and 

tions,  see  rule  43 ;    also  note,    p.   63,  each    counsel    argues   on   the   point. 

ante.     It   is   irregular    to  obtain   one  The  master  will   then   allow  or   dis- 

rule  of  reference   only,  where   more  allow  it,  or  suspend  his  opinion ;  and 

than    one    answer     is    excepted     to.  thus    all    the    exceptions    are    gone 

Allanson  v.  Moorsom,  2  Sim.  &  Stu.  478.  through  with.     1  Barb.  Ch.  Pr.  186  ; 


124  FORMS  OF   PLEADINGS. 

whereby  the  exceptions  filed  by  the  complainant  to  the  answer 
of  the  defendant,  ,  were  referred  to  the  subscriber,  one  of 

the  special  masters  of  the  said  court,  to  *  look  into  the  complain- 
ant's bill  of  complaint,  the  answer  of  the  said  defendant,  and  the 
exceptions  taken  to  said  answer  by  said  complainant,  and  report 
whether  said  exceptions  are  well  taken  or  not,  I,  the  said  master, 
do  hereby  respectfully  certify  and  report,  that  ("  having  been 
attended  by  the  counsel  of  the  respective  parties,  and  ")  having 
looked  into  said  bill  and  answer  and  the  exceptions  thereto,  and 
having  duly  considered  the  same,  I  find  that  the  second  and 
fourth  exceptions  to  said  answer  are  well  taken,  and  that  the 
first,  third  and  fifth  exceptions  are  not  well  taken,  {or  as  the  case 
may  be;  stating  the  reasons  as  to  the  various  exceptions,  and  con- 
clude.) 

Respectfully  submitted,  this  day  of  ,  &c. 

{Signature  of  master.) 

Rule  nisi  to  confirm  report,  (a)     The  form  of  this  rule  is 
the  same  as  that  on  page  64,  ante,  changing  the  word  "  com-  ■ 
plainant "  to  " defendant"  and  vice  versa.) 

1  Tur.  Ch.  Pr.  477.  The  report  report.  For  the  practice  of  the  court 
should  be  sent  to  the  clerk's  ofBce  by  as  to  the  taking  of  the  rule  and  ser- 
the  master  to  be  filed.  Where  the  vice  thereof  upon  the  defendant,  see 
answer  has  been  reported  insufficient  Miller's  Adm'r  v.  Miller,  11  C.  E. 
and  the  master's  report  has  been  filed,  Gr.  423  ;  also,  ante  p.  63,  note.  The 
the  complainant  is  at  liberty,  on  mo-  practice  of  the  court  with  regard  to 
tion  as  of  course,  to  obtain  an  order  to  answers  on  account  of  scandal,  imper- 
amend  his  bill  without  costs,  and  that  tinence  and  insufiiciency,  is  the  same, 
the  defendant  answer  the  amendments  mutatis  mutandis,  as  that  already  de- 
and  exceptions  at  the  same  time.  scribed  with  respect  to  exceptions  to 
This  practice  does  not  apply  to  in-  bills.  See  "Exception  to  Bill "  If  the 
junction  bills.  Smith  285 ;  see  rule  67.  master  reports  the  answer  insufficient. 
Liberty  was  given  to  amend  an  ex-  and  his  report,  if  excepted  to,  is  con- 
ception after  hearing  thereupon,  and  firmed  by  the  court,  the  defendant 
defendant  required  to  answer  the  ex-  must  answer  further,  by  way  of  addi- 
ception  as  amended.  Bennett  v.  Ham-  tion  or  supplement  to  his  original 
lin,  2  Dick.  Ch  Bep.  326.  answer.  If  only  one  exception  is 
(a)  This  rule  will  l:>e  entered  by  the  allowed,  the  answer  is  considered  in- 
clerk  in  the  common  rule-book,  at  the  sufficient.  Smith  *284. 
request    of   the    solicitor    filing    the 


EXCEPTIONS  TO  ANSWER.  125 

Notice  of   defendant's  submission  to  answer  ex- 
ceptions.(a) 

{Title  of  cause.) 

Take  notice,  that  ,  the  defendant  in  the  above-entitled 

cause,  whose  answer  filed  in  said  cause  has  been  excepted  to  for 
insufficiency,  (or,  "impertinence  or  scandal,"  as  the  case  may  be,) 
as  by  the  said  exceptions  filed  in  said  cause  appears,  hereby  sub- 
mits to  answer  the  said  exceptions ;  {or,  if  the  exceptions  to  the 
answer  are  for  impertinence  and  scandal,  add,  "and  hereby  con- 
sentg(6)  that  the  parts  of  the  said  answer  so  excepted  to  may  be 
expunged.") 

{Signature  of  solicitor.) 
To  ,  {Solicitor  of  complainant.) 

Exceptions  to  master's  report  on  exceptions  to 
answer. 

{Title  of  cause.) 

Exceptions  taken  by  the  complainant  {or  "defendant")  to 
the  report  of  ,  one  of  the  special  masters  of  this  court,  to 

whom  it  was  referred,  to  report  as  to  the  exceptions  filed  to  the 
answer  of  the  said  defendant. 

(a)  The  submission  is  made  by  twenty  days  after  receiving  a  copy  of 
giving  notice  thereof  to  the  com-  the  exceptions,  or  on  failure  thereof, 
plainant's  solicitor  and  paying  the  the  complainant's  bill  shall  be  taken 
costs  of  the  exceptions.  Bide  73;  as  confessed,  and  such  proceedings 
Braithwaite's  Pr.  129.  If  the  com-  had  thereon  as  if  the  first  or  original 
plainant  shall,  within  six  days  after  answer  had  not  been  filed.  Rule  74. 
such  notice,  or  within  such  further  (b)  When  an  answer  shall  be  ex- 
time  as  the  court  shall  allow,  amend  cepted  to  for  insufficiency  and  for 
his  bill  and  the  defendant's  copy,  the  impertinence  and  scandal,  or  for  in- 
defendant  shall  answer  the  exceptions  sufficiency andimpertinenceorscandal, 
and  amendments  at  the  same  time.  if  the  defendant  submits  to  answer  the 
Rule  73.  When  a  defendant  shall  exceptions  for  insufficiency,  but  does 
have  given  notice  that  he  submits  to  not  at  the  same  time  give  notice  that 
answer  the  exceptions,  he  shall  file  he  consents  to  have  the  parts  of  the 
a  second  or  further  answer  within  answer  excepted  to  for  impertinence 
twenty  days  after  the  complainant  has  or  scandals  expunged,  the  complain- 
amended  his  bill  and  the  defendant's  ant  may  immediately,  and  of  course, 
copy,  if  the  complainant  shall  amend  enter  a  rule  to  refer  the  exceptions  for 
his  bill ;  or  if  the  complainant  shall  impertinence  or  scandal  to  a  master, 
not    amend     his     bill,    then    within  Rule  75. 


126  FORMS   OF   PLEADINGS. 

First.  For  that  the  said  master  has,  in  and  by  his  said  report, 
certified  that,  &c.,  {set  out  the  words  of  the  report.)  Whereas  he 
ought  to  have  certified,  &c. 

Second.  For  that  the  said  master  has  certified,  &c. 

In  all  which  particulars  the  report  of  the  said  master  is,  as 
the  said  is  advised,  erroneous,  and  the  said  appeals 

therefrom  to  the  judgment  of  this  honorable  court. 

(Signature  of  solicitor  and  counsel.) 

Rule    for    hearing    upon    exceptions    to    master's 

report.(a)  For  form  of  above  rule,  see  p.  66,  substituting  the 
word  "  complainant "  for  "  defendant/'  if  the  rule  be  taken  at  the 
instance  of  the  defendant.) 

Order  for  further  answer  after  report  of  master  upon 
insufficiency  of  answer.(6) 

{Title  of  cause.) 

The  answer  of  the  defendant,  ,  having  been  reported 

insufficient  in  the  matters  of  the  and  exceptions 

taken  thereto,  by  ,  the  master  to  whom  the  exceptions  of 

the  complainant  to  such  answer  were  referred ;  and  the  report 
of  the  said  master  having  become  absolute  against  the  said 
defendant :   It  is,  on  this  day  of  ,  &c.,  on  motion  of 

,  of  counsel  with  the  complainant,  ordered  that  the  said 
put  in  a  further  answer  to  the  matters  of  the  said 

(a)  The  service  of  the  rule  setting  time.     Rev.,  "  Chancery,"  ^  36.     New 

down  exceptions  to  a  masters  report  exceptions  for  insufficiency  cannot  be 

of  insufficiency    prevents    process   of  taken  to  the  further  answer,  founded 

contempt  issuing  to  compel  a  further  upon  the  matter  of  the  original  bill 

answer  until  the  exceptions  are  dis-  only.    If  the  second  or  further  answer 

posed  of.  be  considered   insufficient,   the   com- 

(6)  When  an  answer  shall  be  ad-  plainant  does   not  except  again,  but 

judged  to  be  insufficient,  the  defendant  the  bill,  the  two  answers  and  the  old 

must  file  a  second  or  further  answer  exceptions  are  referred   back  to  the 

within  thirty  days  after  such  adjudi-  master.     Williams  v.  Davies,  1  Sim.  & 

cation,  or,  on  failure  thereof,  the  said  Slu.    426 ;    Bennington    Iron    Co.   v. 

bill  shall  be  taken  as  confessed,  and  Campbell,  2  Paige  159.     An  exception 

such  proceedings  had  thereon  as  if  the  for  insufficiency  may  be  allowed  as  to 

first  or  original  answer  had  not  been  part  and  overruled  as  to  part.     Ben- 

filed   within   the  limited   or   granted  nett  v,  Hamlin,  2  Dick.  Ch.  Rep.  326. 


EXCEPTIONS   TO   ANSWER.  127 

and  exceptions  within  thirty  days  after  service  upon  him 

of  a  copy  of  this  order,  and  pay  the  costs  of  such  exceptions,  or 
that  an  attachment  issue,  {or,  *'  the  bill  be  taken  as  confessed,") 
against  him. 

Further  answer  after  exceptions  and  amend- 
ments. («) 

{Commencement  as  on  page  105.) 

This  defendant,  for  further  answer  unto  the  original  and 
amended  bill,  or  unto  so  much,  &c.,  answers  and  says,  &c. 

And  this  defendant,  in  further  answer  to  such  original  bill, 
as  to  the  matters  of  the  exception  taken  by  the  complainant  to 
his  former  answer,  says,  &c. 

And  this  defendant,  for  further  answer  to  the  amendments 
made  to  such  original  bill,  says,  &c. 

Rule   referring    exceptions    on    second    or    third 

answer.(6) 

{Title  of  cause.)  V  {Date  of  rule.) 

Exceptions  having  been  heretofore  taken  to  the  answer  of  the 
defendant,  ,  and  such  answer  having  been  reported  insuffi- 

cient in  the  matters  of  the  and  exceptions,  the  said 

(a)  If  a  second  or  further  answer  (b)  The  proceedings  upon  the  ex- 
shall  be  adjudged  to  be  insufficient,  ceptions  to  a  second  or  third  answer 
the  defendant  shall  pay  double  costs,  for  insufficiency  are  precisely  the  same 
and  shall  file  a  third  or  further  answer  as  those  upon  exceptions  to  a  first 
within  twenty  days  after  such  adjudi-  answer.  The  master,  in  deciding  upon 
cation,  or,  on  failure  thereof,  &c.,  {as  the  exceptions,  will  look  at  the  second 
in  note  a.)  Rev.,  "  Chancery"  §  37.  If  or  third  answer  in  connection  with 
a  first  or  second  answer  is  held  in-  the  preceding  answer,  and  report 
sufficient,  the  complainant  does  not,  accordingly.  Farquharson  v.  Balfour, 
by  accepting  a  further  answer,  waive  Turn.  &  B.  189.  If  a  first  or  second 
his  right  to  the  costs  already  due  to  answer  is  held  insufficient,  the  statute 
him  for  the  insufficiency  of  the  provides  within  what  time  the  further 
former  answers.  Brotherion  v.  Chance,  answer  must  be  put  in.  Bev.,  "  Chan- 
Sunh.  34.  eery,"  U  36,  37.     But  in  the  case  of  a 


128  FORMS   OF   PLEADINGS. 

defendant  has  put  in  a  second  {or  "  third  ")  answer  to  the  bill 
in  this  cause,  which  answer  the  complainant  alleges  to  be  insuffi- 
cient in  the  matters  of  the  and  exceptions  :  It  is 
ordered  that  it  be  referred  to  ,  the  master  to  whom  such 
exceptions  were  originally  referred,  to  look  into  the  bill  of  com- 
plaint, the  answers  of  the  said  defendant  and  the  said  and 
exceptions,  and  report  whether  such  second  {or  "  third  ") 
answer  is  sufficient,  in  the  matters  of  the  said  exceptions,  or  not. 

Entered,  &c. 

By  the  court.  {Signature  of  clerk.) 

Order  for  an  attachment  on  third  answer  being 
reported  insufficient. 

{Title  of  cause.) 
Commence   as   on  page   36,  and   after  *  say,  "  that   by  an 
order  of  this  court,  bearing  date  on  the  day  of  last, 

it  was  referred  to  ,  one  of  the  special  masters  of  this 

court,  to  look  into  the  bill  of  complaint,  the  answers  of  the 
defendant  ,  and  the  and  exceptions  to  his 

original  answer,  and  to  report  whether  the  third  answer  of  the 
said  was  sufficient  in  the  matters  of  those  exceptions  or 

not ;   and  that   said  master  has  reported  that  the  said  third 
answer  was  insufficient  in  the  matters  of  the  said  and 

exceptions  ("  as  appears  by  the  said  report  now  on  file : ") 
It  is,  on  this  day  of  ,  &c.,  on  motion  of  ,  of 

counsel  with  the  complainant,  ordered,  that  an  attachment  issue 
against  the  said  defendant,  ,  for  not  answering." 

third   insufficient  answer,  no  further  statute  of  New  Jersey,  if  a  third  or 

time   to  answer  is   allowed,  but  the  further  answer  shall  be  adjudged  to 

court  may  order  the  defendant  to  be  be   insufficient,   the  defendant    shall 

examined  upon  interrogatories  to  the  pay   treble  costs,   and   in   such   case, 

point  as  to  which  the  answer  is  held  further  time  to  answer  shall  not   be 

to  be  insufficient,  and  to  stand  com-  allowed,  but   the   said   bill   shall   be 

mitted  until  he  shall  have  perfectly  taken  as  confessed,  and  such  proceed- 

answered  the  interrogatories,  and  also  ings   had   thereon/  as  if  the   first   or 

paid  the  costs  awarded  to  the   com-  original  answer  had  not  been  filed  in 

plainant.     1  Dan.  Ch.  Fr.  111.     By  due  time.     iBec,  "  Chancery"  |  38. 


EXCEPTIONS   TO   ANSWER.  129 

Order  for  examination  of  defendant  upon  interroga- 
tories on  third  answer  being  reported  insufficient. (a) 

{Title  of  cause.) 
As  in  preceding  form  to  *,  then,  "that  the  third  answer  of  the 
defendant,  ,  has  been  reported  insufficient,  on  a  reference 

to  a  master  upon  the  original  exceptions,  in  the  matters  of  the 
and  exceptions,  and  the  report  of  ,  the 

master  to  whom  such  exceptions  were  referred,  having  been  filed, 
and  having  become  absolute,  and  an  attachment  having  there- 
upon issued  against  said  in  pursuance  of  an  order  of  this 
court.  And  the  said  now  being  personally  before  the 
court  by  virtue  of  the  said  attachment,  and  the  Chancellor  now 
adjudging  the  said  defendant  to  have  been  guilty  of  the  miscon- 
duct alleged  against  him ;  and  that  such  misconduct  was  calcu- 
lated to,  or  actually  did,  defeat,  impede  or  prejudice  the  rights 
or  remedies  of  the  complainant  in  this  cause :  It  is,  on  motion, 
&c.,  ordered,  that  the  said  be  examined  upon  interroga- 
tories before  ,  one  of  the  masters  and  examiners  of  this 
court,  to  the  points  wherein  his  said  third  answer  is  reported 
insufficient;  and  that  he  stand  committed  to  the  jail  of  the 
county  of  ,  until  he  shall  have  answered  such  interroga- 
tories to  the  satisfaction  of  the  said  master,  and  paid  the  costs 
incurred  by  reason  of  his  default  in  not  answering,  and  that  a 
warrant  issue  for  that  purpose.  And  it  is  further  ordered,  that 
the  sheriff  of  said  county  keep  the  said  defendant  in  his  actual 
custody  until  the  further  order  of  this  court  in  the  premises,  and 
that  he  produce  the  said  before  the  said  master  to  be 
examined,  at  such  times  as  said  master  shall  appoint." 

Master's  report  as  to  sufficiency  of  defendant's 
examination.  In  pursuance  of  an  order,  &c.,  {and  as  on  p. 
123  to  *,  then,)  "examine  the  defendant  on  interrogatories  to  the 
points  wherein  his  third  answer  to  the  bill  in  this  cause  was 
reported  insufficient,  I,  the  said  master,  do  hereby  respectfully 

(o)  If  the  defendant  be  in  custody,  rogatories   are   to   be   settled   by  the 

the  complainant   should   exhibit   his  Chancellor  before  they  are  delivered 

interrogatories  without  delay.  Farqu-  to  the  master. 
harson  v.  Balj'our,  supra.     The  inter- 


130  FORMS   OF   PLEADINGS. 

certify  and  report  that  having  ("  been  attended  by  the  counsel 

for  the  respective  parties,  and  ")  caused  the  said  to  be 

brought  before  me,  I  examined  him  upon  oath  upon  the  written 

interrogatories  filed  for  that  purpose,  "  and  also  viva  voce,"  and 

that  his  examination  thereto  is  contained  in  a  schedule  hereto 

annexed,  marked  A.     And  I  do  further  certify  and  report  that, 

in  my  opinion,  the  said  examination  is  sufficient,  {o7'  as  the  case 

may  be.)     All  which,"  &c. 

[Signature  of  master.) 

Order  to  take  bill  as  confessed  on  third  answer 
being  reported  insufficient,  and  after  attachment 
issued,  ^s  on  p.  36  to  *,  then,  "that  the  third  answer  of 
the  defendant,  ,  having   been   reported   insufficient,  on 

reference  to  a  master  upon  the  original  exceptions,  in  the  matters 
of  the  and  exceptions,  and   the   report   of  the 

master  to  whom  such  exceptions  were  referred  having  been 
filed  and  having  become  absolute,  and  an  attachment  having 
been  issued  against  the  said  ,  pursuant  to  an  order  of  the 

Chancellor  in  this  cause,  and  it  now  appearing  to  the  court,  by 
affidavit,  that  the  said  *  cannot  be  arrested  on  such  attach- 

ment, and  does  not  surrender  himself  thereon^  (or,  after  the 
second  *,  "  having  been  arrested  on  such  attachment,  refuses  to 
answer  the  interrogatories  filed  for  his  examination  to  the  satis- 
faction of  the  master,  as  appears  by  his  certificate  and  report : 
It  is,  on  this,  &c.,  on  motion,  &c.,  ordered,  adjudged  and  decreed 
that  the  complainant's  bill  of  complaint  in  this  cause  be,  and 
the  same  is  hereby  taken  as  confessed  against  the  said  defend- 
ant") 

(For  form  of  usual  decree  pro  confesso,  see  page  34,  ante.) 

Order  confirming  master's  report  on  exceptions  to 

answer,  (a) 

{Title  of  cause.) 

It  appearing  to  the  court  that  ,  esquire,  one  of  the 

special   masters  of  this  court,  to  whom  a  reference  had   been 

(a)  If  the  exceptions  are  overruled,  answer  is  adjudged  insufficient,  must 
the  complainant  must  pay  costs  to  the  pay  costs  to  the  complainant.  Bev., 
defendant,  and  the  defendant,  if  his       "  Chancery,'"  §  35.    Where  exceptions 


EXCEPTIONS   TO   ANSWEE.  131 

made,  by  an  order  of  this  court,  of  the  exceptions  taken  and 
filed  by  the  complainant  to  the  defendant's  answer,  has  made  a 
report  against  said  exceptions,  in  favor  of  the  said  defendant's 
answer,  and  it  appearing  that  the  said  complainant  has  obtained 
an  order  to  amend  his  said  bill,  and  has  filed  such  amendments, 
and  that  the  same  requires  a  new  or  further  answer  from  said 
defendants  :    It  is,  on  this  day  of  ,  &c.,  on  motion 

of  ,  solicitor  and  of  counsel  with  the  defendant,  ordered, 

that  the  said  master's  report  be  ratified  and  confirmed,  and  that 
the  exceptions  of  the  complainant  be  overruled,  with  costs,  to 
include  the  said  defendant's  costs  to  be  taxed  on  the  amended 
bill  and  further  answer. 

Order  to  expunge  scandal  and  impertinence  from 
answer,  on  report  of  a  master. 

{Title  of  cause.) 

As  in  form  on  page  36  to  *,  then,  "  that  the  answer  of  the 
defendant,  ,  has  been  reported  by  ,  the  master  to 

whom  the  exceptions  for  scandal  and  impertinence  were  referred, 
as  scandalous  in  the  matter  of  the  and  exceptions, 

and  impertinent  in  the  matter  of  the  exception,  and  no 

€ause  being  shown  against  confirming  the  said  report :  It  is,  on 
this,  &c.,  on  motion  of,  &c.,  ordered  that  the  said  master's 
report  do  stand  confirmed  in  all  things ;  and  it  is  further  * 
ordered  that  the  clerk  of  this  court  expunge  from  said  answer 
such  scandalous  and  impertinent  matter,  according  to  said 
report ;  and  it  is  further  ordered  that  the  said  defendant  , 

pay  to  the  complainant,  or  his  solicitor,  the  costs  of  the  said  ex- 
ceptions and  the  proceedings  thereon,  within  days  after 
service  upon  him,  or  his  solicitor,  of  a  copy  of  this  order  and  of 
the  taxed  bill  of  costs." 

are  sustained  in  part,  and  overruled  exceptions  are  sustained,  the  proper 
in  part,  see,  as  to  costs,  C  cfc  A.  R.  B.  practice  is  to  set  the  cause  down  for 
Co.  V.  Stewart,  4  C.  E.  Gr.  350;  M.  E.  hearing ;  not  to  take  a  decree  pro  con- 
Church  V.  Jaques,  1  Johns.  Ch.  Rep.  fesso  for  want  of  an  answer,  for  defend- 
05 ;  Richards  v.  Barlov;  1  Paige  323.  ant  has  a  right  to  answer  again. 
In  case  of  exceptions  for  insufficiency  O'Brien  v.  Hulfish,  7  C.  E.  Gr.  477  ; 
to  only  part  of  an  answer,  where  the  Vanderveer  v.  Holcomb,  Id.  558. 


132  FORMS   OF   PLEADINGS. 

Order  to  expunge  scandal  and  impertinence  on  sub- 
mission to  exceptions. 

{Title  of  cause.) 
Commencement  as  in  preceding  form — that  the  answer  of  the 
defendant,  ,  has  been  excepted  to  for  scandal  and  imperti- 

nence, and  that  the  said  defendant  has  submitted  to  such  excep- 
tions in  the  matters  of  the  and  exceptions,  (or,  as 
the  case  may  be,)  as  appears  by  a  notice  of  such  submission, 
signed  by  his  solicitor,  and  served  upon  the  complainant's 
solicitor :  On  reading  and  filing  such  notice  of  submission,  it  is, 
&c.,  on  motion,  &c.  [Conclusion  as  in  preceding  form  after  *, 
except  using  the  words  "  according  to  said  notice  of  submission,'' 
instead  of  "  according  to  said  report.") 


AMENDING   BILL. 


Order  for  leave  to  amend  bill  after  demurrer.(a) 

{Title  of  cause.) 
The  defendant,  ,  having  filed  a  demurrer  to  the  bill  of 

complaint  in  this  cause,  for  want  of  parties,  {or  other  formal 
defect,  as  the  case  may  be) :  It  is,  on  this,  &c.,  on  motion  of  , 

(a)  The  complainant   may   amend  or  no  longer  necessary  to  complain- 

liis  bill  of  course,  and  without  motion  ant's   case,  or   the   names   of  parties 

or   rule,  at   any  time  before   answer,  wlio  may  be  dispensed  with,  the  bill 

plea  or   demurrer  filed,  and  without  may  be  amended  by  striking  out  such 

costs.     Rule  60.     If  a  bill   does   not  matter  or  parties.     The  original  bill 

contain  such  material   facts,  or  make  thus  added  to  or  altered  is  an  amended 

all  such  persons  parties  as  are  neces-  bill.     1  Barb.  Ch.  Pr.  205.     Amend- 

sary  to  enable  the  court  to  do  com-  ments  are,  as  a  general  rule,  in  the 

plete   justice,   the   complainant    may  discretion  of  the  court,  especially  in 

alter  it  by  inserting  additional  matter  matters  of  mere  form,  and  are  allowed 

subsisting   at   the   time  of  filing   the  with  great  liberality  until  after  repli- 

bill,  of  which  he  was   not   then  ap-  cation.     Buckley  v.  Corse,  Sax.   504 ; 

prised,  or  which  he  thought  not  neces-  Coddington  v.  Mott,   1    McCart.   431. 

sary  to  be  stated.     And  he  may  add  Facts  which  have  occurred  since  the 

such    persons    as    shall    be    deemed  filing  of  the  original  bill  ought  not  to 

necessary  parties.     Or  in  case  the  bill  be  introduced  by  amendment,  because 

is  found  to  contain  matter  not  relevant  the  introduction  of  matters  of  a  pos- 


AMENDING    BILL. 


133 


of  counsel  with  the  complainant,  ordered  that  the  said  complain- 
ant have  leave  to  amend  his  bill  as  he  may  be  advised,  upon 
payment  of  costs  to  be  taxed,  and  that  the  defendant  plead, 


terior  date  would  render  the  record 
incongruous.  Matter,  therefore,  which 
has  occurred  since  the  original  bill 
was  filed,  should  be  brought  before 
the  court  by  supplemental  bill,  and 
not  by  amendment.  1  Barb.  Ch.  Pr. 
207;  Ogden  v.  Gibbon,  July,  1823; 
Archbishop  of  York  v.  Stapleten,  2  Atk. 
137.  There  are  exceptions,  however, 
to  this  rule.  See  Humphreys  v.  Hum- 
phreys, 3  P.  Wms.  351 ;  Bradford  v. 
Felder,  2  McCord's  Ch.  *170.  Wher- 
ever an  amendnaent  can  be  made  it  is 
to  be  preferred  to  a  supplemental  bill. 
Hammond  v.  Hammond,  2  3Ioll.  312. 
But  when  the  amendments  would 
change  the  issue,  or  introduce  new 
issues,  or  materially  vary  the  grounds 
of  relief,  and  the  application  to  amend 
is  made  after  the  cause  is  at  issue,  and 
evidence  has  been  taken  on  both  sides, 
they  must  be  introduced  by  supple- 
mental bill.  Seymour  v.  Long  Bock 
Co.,  2  C.  E.  Or.  170.  If  the  defendant 
demur  to  the  bill  for  want  of  parties 
or  other  defect,  which  does  not  go  to 
the  equity  of  the  whole  bill,  the  com- 
plainant may  amend,  of  course,  at  any 
time  before  the  next  term  after  the 
filing  of  the  demurrer,  upon  payment 
of  costs.  Bute  70 ;  Hoboken  Ass'n  v. 
Martin,  2  Beas.  427 ;  Van  Keuren  v. 
McLaughlin,  6  C.  E.  Gr.  163,  379; 
Barrett  v.  Doughty,  10  C.  E.  Gr  379. 
But  where  a  bill  on  demurrer  was 
dismissed  for  want  of  equity,  on  the 
merits  of  the  case  as  stated,  leave  to 
amend  the  bill  was  refused.  Lyon  v. 
Talmadge,  1  Johns.  Ch.  184.  Appli- 
cations to  amend  should  be  made 
promptly  after  the  necessity  for  the 
amendment  has  been  discovered.  Cod- 
V.  Mott,    1    McCart.   430;    Bogers   v. 


Bogers,  1  Paige  424.  The  sixty-sixth 
rule,  it  has  been  seen,  allows  the  com- 
plainant, in  cases  where  the  bill  has 
not  been  sworn  to,  to  amend  it  at  any 
time  before  answer,  plea  or  demurrer 
filed,  of  course,  without  motion  or 
rule  and  without  costs.  If  the  de- 
fendant put  in  an  answer,  which  is 
excepted  to  as  insufiicient,  and  he  sub- 
mits to  answer  further,  or  the  answer 
shall,  on  reference,  be  reported  in- 
sufiicient, the  complainant  may  amend 
his  bill  of  course  and  without  costs, 
and  the  defendant  shall  answer  the 
amended  bill  and  exceptions  together, 
and  if  the  defendant  shall  plead  or 
demur,  and  the  plea  or  demurrer  shall 
be  overruled,  the  complainant  may, 
before  the  filing  of  an  answer,  amend 
his  bill  of  course  and  without  costs. 
Bule  67.  In  cases  not  provided  for 
by  the  sixty-sixth  and  sixty-seventh 
rules,  when  the  defendant  shall  have 
answered  the  bill,  and  the  complain- 
ant shall  obtain  leave  to  amend,  if 
such  amendment  require  a  new  or 
further  answer,  then  the  complainant 
shall  pay  costs.  Bule  68.  Where 
the  defendant's  appearance  has  been 
entered,  and  he  has  procured  a  copy 
of  the  bill,  and  the  complainant  is 
allowed  to  amend  without  costs,  he 
must  furnish  the  defendant  with  a 
certified  copy  of  the  amended  bill,  or 
amend  the  defendant's  copy  gratis. 
Bule  69.  In  all  cases  of  amendments 
not  specifically  provided  for  in  the 
rules  above  cited,  application  should 
be  made  to  the  court  on  notice.  Cod- 
dington  v.  Mott,  supra.  The  practice 
of  amending  injunction  bills  and  other 
sworn  bills,  even  after  answer  and 
after  argument,  has  obtained  in  New 


134  FORMS   OF   PLEADINGS. 

demur  or  answer  to  the  amended  bill  within  days  after 

service  upon  his  solicitor  of  said  amended  bill  {or  "amend- 
ments.") 

Order  for  leave  to  amend  bill  after  a  plea  is  allowed. 

{Title  of  cause.) 

The  plea  of  the  defendant,  ,  to  the  bill  of  complaint 

in  this  cause  having  been,  on  argument,  allowed  ("  as  to  part  of 
said  bill :")  It  is,  on  this,  &c.,  on  motion  of,  &c.,  ordered,  that 
the  complainant  have  leave  to  amend  his  bill  by  {state  the  man- 
ner in  which  it  is  to  be  amended,)  upon  payment  of  costs,  to  be 
taxed,  and  (as  in  order  above.) 

Order    for    leave    to    withdraw   replication,    and 
amend  bill.(a) 

{Title  of  cause.) 

This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  ("  in  presence  of  ,  of  counsel  with 

the  defendants,"  or,  if  no  one  appears  to  oppose,  say,  "  and  it 

Jersey,  and  the  indulgence  has  been  complainant  had  not  a  knowledge  of 
granted  more  freely  than  has  been  the  facts,  so  as  to  enable  him  to  bring 
approved  elsewhere.  Ibid.  If  the  that  case  upon  the  record  sooner, 
complainant,  after  filing  his  bill  for  Such  strictness  of  practice  has  not 
an  injunction,  discovers  that  he  has  obtained  upon  first  amendments, 
omitted  to  state  any  matter  or  join  any  Buckley  v.  Corse,  Sax.  509.  On  a  de- 
person  as  party  to  the  suit,  or  if  the  murrer  for  causes  other  than  those 
defendant  has  answered  and  the  provided  for  in  the  fifty-sixth  rule, 
complainant  thereby  obtains  further  the  right  to  amend  and  the  terms  of 
knowledge  of  facts  or  circumstances  the  amendments  are  in  the  discretion 
which  may  aid  him  in  the  cause,  or  if  of  the  court.  Marsh  v.  Marsh,  1  C. 
he  has  occasion  to  remedy  any  imper-  E.  Or.  392.  Amendments  which  seek 
fection  in  the  frame  of  the  bill,  he  to  make  a  new  case  inconsistent  with 
may  apply  to  amend  ;  the  amend-  that  originally  made  should  be  applied 
ments  may,  if  the  court  so  order,  be  for  before  issue.  Coddington  v.  Moll; 
without  prejudice  to  the  injunction.  Seymour  v.  Long  Dock  Co.,  ubi  supra. 
JBliss  V.  Boscawen,  2  Ves.  A  B.  102 ;  (a)  To  amend  the  bill  after  repli- 
Benwick  v.  Wilson,  6  Johns.  Ch.  81.  cation,  an  application  to  the  court^ 
But  an  application  for  a  second  upon  notice  to  the  opposite  party,  for 
amendment  of  such  a  bill  must  dis-  leave  to  withdraw  the  replication  and 
close  its  nature  with  precision,  and  amend  the  bill  is  necessary.  )  Dan. 
must    be   founded    on   afiidavit    that  Ch.  Pr.  834 ;  Burgin  v.  Giberson,  8  C. 


AMENDING    BILL.  135 

appearing  that  due  notice  has  been  given  of  this  application,"  *) 
and  upon  good  cause  shown  by  affidavit  and  otherwise :  It  is, 
on  this,  &c.,  on  motion  as  aforesaid,  ordered,  that  the  said  com- 
plainant have  leave  to  withdraw  his  replication  to  the  bill  of 
complaint  in  this  cause,  and  amend  his  bill  in  days  from 

this  day  ("  by  adding  parties "  or  otherwise,)  as  he  shall  be 
advised.  And  it  is  further  ordered,  that  the  complainant  pay 
to  the  defendant,  ,  the  usual  costs  of  amendment  and  the 

costs  of  this  application. 

Order  for  leave  to  amend  bill  under  rule  67. 
{Title  of  cause.) 

The  answer  of  the  defendant,  ,  to  the  bill  of  complaint 

in  this  cause,  having  been  excepted  to  for  insufficiency,  and  the 
said  defendant  having  submitted  to  answer  further,  {or,  "  and 
the  master  to  whom  the  said  exceptions  were  referred  having 
reported  the  said  answer  insufficient : ")  It  is,  on  this,  &c.,  on 
motion,  &c.,  ordered,  that  the  said  complainant  have  leave  to 
amend  his  bill  as  he  may  be  advised  ;  {or,  if  the  defendant  shall 
have  filed  a  plea  or  demurrer,  commence  and  say,  ''The  plea  {or 
"  demurrer")  to  the  complainant's  bill  in  this  cause  having  been, 
on  argument,  overruled,  and  no  answer  having  been  filed  to  said 
bill :    It  is,"  {conclude  as  above.) 

Order  to  amend  bill  after  answer.(a) 
{Title  of  cause.) 

The  defendant,  ,  having  filed  his  answer  to  the  bill  of 

complaint  in  this  cause,  {or  state  the  position  of  the  suit,  as  the 

E.  Gr.  4(3;  Carleton  v.  L' Estrange,  1  Biper  v.  Claxton,  1  Stock.  302,     Or  at 

Turn.  &  R.  23 ;  Small  v.  Atwood,  2  Y.  the   hearing.     Hcwdl    v.   Sebring,   1 

&  Jer.  512.     The  complainant  should,  McCart.  84  ;  Elmer  v.  Loper,  10  C.  E. 

if  he  applies  to  amend  before  filing  Gr.  Alb ;   Voorhees  v.  Melick,  Id.  523. 

replication,  obtain  an  order  to  extend  Or  after  hearing.    Hampton  v.  Nichol- 

the  time  for  filing  replication,  pending  son,  8  C.  E.  Gr.  423.     After  the  trial 

his  application   for   leave  to  amend.  of  an  issue  at  law.     Fouell  v.  Mayo, 

Vermillyea  v.  Odell,  4  Paige  121.  11   C.  E.  Gr.  120.     And  where  it  is 

(a)  Amendments   will   be   allowed  necessary   to  make  the  allegations  of 

after   proofs   taken  and   closed.     Van  the  bill  correspond  with  the  proofs. 


136 


FORMS   OF   PLEADINGS. 


case  may  be,)  and  it  appearing  that  due  notice  has  been  given  of 
this  application,  and  on  good  cause  shown :  It  is,  on  this,  &c., 
on  motion  of  ,  of  counsel  with  the  complainant,  ordered, 

that  the  said  complainant  have  leave  to  amend  his  bill  as  he 
shall  be  advised.  And  it  is  further  ordered,  that  he  pay  to  the 
said  defendant,  ,  the  costs  of  a  further  answer  to  be  taxed, 

if  such  shall  be  filed. 


Midmer  v.  Midmer,  11  C.  E.  Gr.  299. 
An  injunction  bill  may  be  amended 
by  inserting  a  prayer  for  process. 
Bailey  v.  Stiles,  2  Gr.  Ch.  245.  When 
a  bill  contains  only  a  special  prayer 
for  relief,  and  the  facts  as  set  forth  in 
the  bill  will  not  authorize  any  other 
relief,  the  prayer  cannot  be  amended. 
Halsted  v.  3Ieeker,  3  C.  E.  Gr.  136. 
An  amendment,  by  adding  parties, 
cannot  be  made  in  the  Court  of  Ap- 
peals. New  Jersey  Franklinite  Co,  v. 
Ames,  1  Beas.  507 ;  see  Black  v.  Del. 
&  Ear.  Canal  Co ,  9  C.  E.  Gr.  456. 
When  an  order  to  amend  is  granted 
upon  payment  of  costs,  these  costs 
must  be  paid  or  tendered  before  any 
further  proceedings  are  had;  other- 
wise, such  further  proceedings  will  be 
nugatory.  Hinde  22.  An  amended 
bill  must  be  signed  by  counsel,  when 
the  amendments  are  separate  from  the 
original  bill.  Webster  v.  Threlfall,  1 
Sim.  &  Stu.  135.  The  proper  course 
to  be  pursued,  in  general,  by  the  de- 
fendant, where  the  bill  has  been 
irregularly  amended,  is  to  apply  to 
the  court,  by  motion,  either  to  have 
the  amended  bill  taken  off  the  file  or 
to  have  the  amendments  expunged. 
The  former  motion  is  applicable  to 
cases  where  there  has  been  a  new 
engrossment,  and  the  latter  is  adopted 
where  the  amendments  ha.ve  been 
merely  made  by  interlineation  of  the 
old  record.  1  Barb.  Ch.  Pr.  221.  An 
amendment  by  an  omission  of  a  pas- 


sage should  be  made  by  striking  a  line 
through  the  part  with  a  pen,  not  by 
erasing  it.  Hinde  22 ;  1  Hoff.  Ch.  Pr. 
292;  Riky  v.  Kemmis,  1  Beatty  317* 
The  amendments  should  be  served  by 
delivering  a  copy  of  them,  specifying 
the  interlineations  or  passages  stricken 
out  by  the  page  and  line,  and  any 
additions  annexed  to  the  bill,  by  the 
designating  letter  and  the  page  and 
lines  where  they  are  to  be  inserted. 
1  Hoff.  Ch.  Pr.  292.  It  has  been  held 
that  a  demurrer  may  be  put  in  to  an 
amended  bill,  notwithstanding  a  de- 
murrer to  the  original  bill  has  been 
prieviously  overruled  Bancroft  v. 
Wardour,  2  Bra.  C.C.  66.  An  amended 
bill  takes  date  from  the  day  it  is  filed, 
and  if  that  be  after  a  cross-bill,  the 
latter  must  be  answered  first.  Scales 
V.  Nichols,  3  Hay.  {Tenn  )  231 ;  Long 
V.  Burton,  2  Atk.  218.  Upon  a  mere 
amendment  of  the  complainant's  bill, 
no  new  subpoena  is  necessary  except 
to  bring  in  new  defendants  who  are 
made  parties  by  the  amendment. 
Lawrence  v  Bolton,  3  Paige  294.  The 
amended  bill  should  call  on  the 
original  defendants  to  answer  the  new 
matter,  or  on  the  new  parties,  if  any, 
to  answer  both.  Pierce  v.  West's  E£r, 
3  Wash.  C.  C.  354.  The  original  bill 
must  be  dismissed  as  against  those 
defendants  not  retained  before  the 
court  as  parties  to  the  amended  bill. 
Sheppard  v.  Osborne,  1  Hogan  126. 


PAYMENT   OF    MONEY   INTO   COURT. 


137 


PROCEEDINGS   ON  THE   PART   OF    DEFENDANT 
BEFORE  REPLICATION. 

Notice  of  motion  for  the  payment  of  money  into 
court,  upon  admissions.(a) 

{Title  of  cause.) 
To  ,  defendant  in  the  above- stated  cause. 

Please  take  notice,  that  I  shall  apply  to  the  Chancellor,  at 
the  State-house  in  Trenton,  {or,  "at  the  chancery  chambers 
in  the  city  of  ,")  on  the  day  of  next,  {or  "  in- 


(a)  In  some  cases,  the  court,  upon 
application  of  the  complainant,  will 
order  money  in  the  hands  of  a  de- 
fendant to  be  paid  into  court  by  him, 
to  abide  the  event  of  the  suit.  The 
time  at  which  the  application  for  this 
purpose  is  usually  made,  is  after  the 
defendant's  answer  has  been  put  in. 
But  it  may  be  made  at  any  stage  of 
the  cause,  provided  the  court  is  satis- 
fied that  money  in  which  the  com- 
plainant has  an  interest  is  in  the 
defendant's  hands,  who  has  no  equit- 
able right  to  it,  or  that  it  is  in  danger 
of  being  lost  Cases  in  which  the  ap- 
plication for  an  order  is  most  usually 
made  are  upon  admission  ;  in  cases  of 
executors  and  trustees;  and  vendors 
and  purchasers.  1  Barb.  Ch.  Pr.  235 ; 
Jerris  v.  White,  6  Ves.  737 ;  Vann  v. 
Barnett,  2  Bro.  C.  C.  158.  Money  will 
not  be  ordered  to  be  paid  into  court, 
which  is  not  ascertained  to  be  due  by 
an  account,  or  a  decree  in  the  cause, 
or  admitted  to  be  due  by  the  answer 
or  other  proceedings  in  the  cause. 
The  order  will  not  be  granted  upon 
affidavit  of  the  parol  admissions  of 
the  defendant  outside  of  the  suit. 
McTighe  V.  Dean,  7  C.  E.  Gr.  81; 
2  Dan.  Ch.  Pr.,  et  seq.  When  it  ap- 
pears by  defendant's  answer,  Rothwell 


V.  Rothwell,  2  Sim.  &  Stu  217;  or 
upon  his  examination  before  the  mas- 
ter, Quarrell  v.  Beckford,  14  Ves.  177; 
or  by  the  master's  report,  that  money 
is  due,  a  motion  may  be  made  for 
payment  of  the  money  into  court. 
Gordon  v.  Rothley,  3  Ves.  bl2.  The 
complainant  will  not  be  allowed  to 
make  use  of  affidavits  to  supply  any 
defect  in  the  answer,  the  rule  being 
that  the  order  shall  be  made  upon 
the  defendant's  admissions  alone,  to 
prove  the  complainant's  title;  but 
affidavits  will  be  received  to  verify 
collateral  facts.  It  must  be  admitted 
that  there  is  a  balance  actually  in  the 
hands  of  the  defendant;  though  the 
actual  amount  of  the  balance  need  not 
be  stated.  2  Dan.  Ch.  Pr.  1780.  It 
was  held  that  money  admitted  by  an 
executor  to  be  in  the  hands  of  his 
partner,  is  in  his  own  hands,  for  the 
purpose  of  being  ordered  to  be  paid 
into  court.  Johnson  v.  Aston,  1  Sim. 
&  Stu.  73.  Where  the  application  is 
against  an  executor  or  trustee,  the 
admission  is  all  that  is  required.  It 
need  not  appear  that  the  fund  is  in 
danger  or  insecure.  1  Hoff.  Ch.  Pr. 
321  ;  Strange  v.  Harris,  3  Bro.  C.  C. 
365  ;  Blake  v.  Blake,  2  Sch.  &  Lef.  26. 
He  will  be  required  to  pay  the  actual 


138  FORMS   OF   PLEADINGS. 

stant,")  at  ten  o'clock  in  the  forenoon,  or  as  soon  thereafter  as 
counsel  can  be  heard,  for  an  order  that  *  you  do  pay  into  this 
court,  in  trust  in  this  cause,  the  sum  of  dollars,  admitted 

by  your  answer  filed  in  this  cause,  to  be  due  from  you ;  and  for 
such  further  or  other  order  or  relief  as  may  be  proper  in  the 
premises ;  which  motion  will  be  founded  on  the  bill  and  answer 
in  this  cause. 

Dated,  ,18     .  {Signature  of  solicitor.) 

Order  to  pay  money  into  court. (a) 

{Title  of  cause.) 
As   on  page  51  to  the  fj  then,  "on    reading   the   bill    and 
answer  in  this  cause  :    It  is,  on  this,  &c.,  on  motion  as  aforesaid, 
ordered,  that  the  defendant,  ,  do,  on  or  before  the 

day  of  next,  pay  to  the  clerk  of  this  court,  in  trust  in 

this  cause,  the  sum  of  dollars,  admitted  by  the  answer  of 

the  said  defendant  to  be  due  from  him ;  and  that  when  such 
money  is  paid  in,  it  be  deposited  to  the  credit  of  this  cause,  there 
to  remain  until  the  further  order  of  this  court." 

balance    only   into   court.      Anon,   4  8   Fes.  381.     It  was  held,  under  the 

Sim.  359;  Hosack  v.  Rogers,  6  Paige  circumstancesof  the  case,  that  amotion 

415.     As  to  cases  of  vendor  and  pur-  to  rescind  an  order  to  pay  money  into 

chaser,   see    1    Barb.    Ch.    Pr.    238.  court  would  not  be  entertained  by  the 

"Where,  in  a  bill  for  specific  perform-  court  until  the  money  had  been  paid 

ance,  complainant,  who   was   a   non-  in.     Dacie  v.  John,  13  Price  117.     In 

resident,   tendered   himself  ready   to  the  absence  of  any  statutory  regula- 

pay  the  purchase  money  to  defendant,  tion  upon  the  subject,  the  rule  prevails 

and  by  the  answer  the  latter  tendered  that  money  paid  into  court  is  a  mei-e 

himself  ready  to  receive  it  and  convey  collateral   security,  and   is  not   to  be 

the  property  according  to  the  agree-  talien  as  a  payment  to  the  complain- 

ment,  on  application  of  defendant,  on  ant.     Clarkson   v.  De  Peyster,  Hopk. 

motion,  the  money  was  ordered  to  be  505 ;   S.  C,  on  appeal,  2    Wend.  77 ; 

paid  into  court.     Pinns  v.  Mount,  1  Ambrose  v.  Ambrose,  1   Cox  S.  C.  194; 

Stew.  Eq.  24.  Kirwan  v.  Blake,  1  Hogan  158.     Affi- 

(a)  In  general,  only  the  principal  davits  were  admitted,  after  answer,  to 

sum  due  from  the  defendant,  and  not  be  read  in  support  of  a  motion  to  pay 

the  interest,  will  be  ordered  paid  into  purchase  money  into  court.   Bradshaw 

court.     Wood  V.  Downes,  1   Ves.  &  B.  v.  Bradshaw,  2  Mer.  492.    On  a  bill  to 

49.     A  reasonable  time  will  be  given  redeem,   or   on    plea  of   tender,   the 

to  pay  the  money  into  court,  and  a  money    must     be     paid     into    court, 

certain   day  for  the  purpose  will   be  Shields  v.  Lozear,  7  C.  E.  Gr.  477. 

named  in  the  order.    Hiqqins  v. , 


OF  CONDUCT  OF  CAUSE  BY  DEFENDANT. 


139 


Order  to  show  cause  why  defendant  should  not 
proceed  in  name  of  complainant. (a) 


(Title  of  cause.) 


Order  to  show  cause. 


This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  ,  defendant  in  above  cause,  and  it  appearing  that  the 

complainant  has  made  the  said  defendant  a  party  to  the  bill  of 
foreclosure  in  this  suit,  and  that  he  claims  to  be  an  encumbrancer 
by  judgment  (or  "mortgage,"  &c ,)  upon  the  lands  mentioned 
and  described  in  complainant's  bill  subsequent  (or  "  prior ")  to 
the  complainant,  and  that  the  said  defendant  has  appeared  and 
filed  his  answer  to  said  bill,  on  the  day  of  last,  and 

it  further  appearing  that  the  complainant  has  since  that  time 


(a)  When  the  complainant,  in  any 
bill  tiled  to  foreclose  a  mortgage,' 
makes  prior  or  subsequent  encum- 
brancers parties  thereto,  and  they 
come  in  and  answer,  and  the  com- 
plainant then  for  four  months,  neg- 
lects or  refuses  to  proceed,  the  said 
defendants,  or  any  of  them,  may  take 
an  order  upon  the  complainant  to 
show  cause  at  any  time,  on  ten  days' 
notice,  why  the  said  defendant  or  de- 
fendants shall  not  be  allowed  to  pro- 
ceed with  the  cause  to  decree  and 
execution  in  his  name;  and  unless 
good  cause  be  shown  to  the  contrary, 
an  order  may  be  made  that  said  de- 
fendant or  defendants  shall  be  allowed 
so  to  proceed  with  the  suit,  and  the 
complainant  shall  not  be  allowed  his 
costs.  Bule  28.  The  design  and 
operation  of  this  rule  is  to  prevent 
any  arrangement  betweeen  the  com- 
plainant and  the  mortgagor,  operating 
to  delay  or  defeat  the  suit,  to  the 
prejudice  of  other  encumbrancers  who 
have  appeared  and  answered.  No  act 
or  agreement  of  the  complainant  can 
interfere  with  the  exercise  of  the  right 
of  the  defendant  under  this  rule.  The 
complainant's  costs  may   be   paid   in 


full,  or  he  may  stipulate  to  give 
further  time  to  the  mortgagor;  the 
defendant  who  has  answered  may, 
nevertheless,  enforce  the  payment  of 
his  demand,  by  means  of  the  suit  in- 
stituted by  the  complainant.  The 
rule  transfers  the  conduct  of  the  suit 
to  the  defendant  substituting  him  in 
the  place  of  the  complainant  for  the 
purpose.  Young  v.  Young,  2  C.  E.  Gr. 
161.  In  cases  where  the  complainant 
would  have  been  bound  to  rule  the 
defendant  to  answer  by  the  terms  of 
rule  27,  the  defendant  who  has  thus 
assumed  the  conduct  of  the  suit  must 
proceed  according  to  that  rule,  against 
the  other  defendants,  as  if  the  com- 
plainant had  proceeded  with  the  same 
cause.  Ibid.  When  the  cause  is  con- 
ducted and  the  decree  taken  at  the 
instance  of  the  defendant  who  has 
answered,  the  provision  requiring  the 
cause  to  be  set  down  on  bill  and 
answer,  where  there  is  neither  excep- 
tion nor  replication,  {Rev.,  "Chan- 
cery," I  33,)  does  not  apply ;  his 
entering  the  decree  is  a  waiver  of  his 
rights  and  a  consent  to  the  decree. 
Id.  164. 


140  FOEMS   OF   PLEADINGS. 

neglected  to  proceed  in  said  cause :    It  is,  on  this  day  of 

,  in  the  year,  &c.,  ordered,  that  the  said  complainant  do 
show  cause  on  the  day  of  next,  at  o'clock  in 

the  forenoon,  at  the  state-house  in  Trenton,  [or  "  at  the  chancery 
chambers  in  the  city  of  ,")  why  the  said  defendant  should 

not  be  allowed  to  proceed  with  the  said  cause  to  decree  and 
execution  in  the  name  of  the  complainant. 

Order  to  proceed  on  the  above. 

{Title  of  cause.) 
This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  defendant,  ,  and  due  proof  being  made  that  the 

order  issued  in  above  cause  on  the  day  of  ,  has 

been  duly  served  upon  the  ("solicitor  of  the")  complainant,  and 
no  cause  being  shown  to  the  contrary  by  the  complainant :  It  is 
thereupon,  on  this  day  of  ,  &c.,  ordered,  that  the 

said  defendant  be  allowed  to  proceed  with  the  said  cause  to 
decree  and  execution  in  the  name  of  complainant,  and  that  the 
complainant  shall  not  be  allowed  his  costs. 

Order  to  dismiss  bill  by  complainant,  (a) 

{Title  of  cause.) 
It  being  suggested  to  the  court,  by  ,  of  counsel  with  the 

complainant,  that  the  matters  in  controversy  in  the  above-stated 
cause  have  been  settled  by  the  parties,  {or,  "  the  complainant 
applying  to  dismiss  his  bill  in  this  cause  :  ")  It  is,  on  this,  &c., 
on  motion  on  behalf  of  ,  the  said  co  mplainant,  ordered, 

(a)  A  complainant  may,  unless  he  must  be  a  special  motion  and  notice 

sue  for  the  benefit  of  another  person,  to  the  defendants.    Rule  15.    The  dis- 

or  is  in  contempt,  at  any  time  before  missal  is  always  with  costs,  except  by 

decree,   dismiss   his   bill,   with   costs.  the  consent  of  the  defendant      Ibid.; 

Carrington  v.  Holly,  Dick.  281 ;  Thomas  Fisher  v.  Quick,  1  Stock.  312  ;  Andrews 

V.  Thomas,  Litt.  9 ;  Bossard  v.  Lester,  v.  Ford,  2  Hal.  Ch.  488.     When  the 

2  McCord's  Ch.  *419 ;  Smith  v.  Smith,  defendant  was  served  with  notice  of 

2   Blackf.   232.     The  dismissal   is   of  an  application  to  dismiss  without  costs, 

course      Dixon  v.  Parks,  1  Ves.,  Jr.,  and    did   not   appear    to   oppose  the 

402.     Unless  a  replication   has   been  motion,  the  dismissal  was  granted  with 

filed  and  the  taking  of  proofs  begun  costs.     Anon.,  1  Ves.,  Jr.,  140. 
by  either  party,  in  which  case  there 


DISMISSAL   OF   BILL. 


141 


that  the  complainant's  said  bill  be,  and  the  same  is,  hereby  dis- 
missed, [if  the  defendant  has  filed  an  answer,  plea  or  demurrer,} 
upon  payment  of  the  costs  of  the  defendant  to  be  taxed,  {or, 
"without  prejudice.")(a) 

Notice  of  motion  to  dismiss  bill  for  want  of  pros- 

ecution.(6)  As  on  page  137,  changing  "  defendant "  to  "  com- 
plainant,'' to  the  *,  then,  "  the  bill  of  complaint  in  this  cause  be 
dismissed,  with  costs,  for  want  of  prosecution  ;  "  or,  if  the  motion 
be  under  Rev,,  "Chancery/'  §  33,  state  the  object  of  the  motion 
accordingly. 


(a)  A  voluntary  dismissal  of  a  bill 
by  the   complainant,   or  a  voluntary 
dismissal  upon  any  interlocutory  pro- 
ceeding, will  not  prevent  a  new  bill 
from  being  filed.     It  is  not  pleadable 
unless  it  is  a  dismissal  by  the  court 
upon  the  hearing.     But  a  dismissal  of 
an   original   bill,   on   motion   of    the 
complainant,  is  a  good  bar  to  a  bill  of 
revivor   and    supplement,   or   either, 
founded    upon   it.     1    Barb.    Ch.  Pr. 
228;   Brandlyn   v.  Ord,  1   Atk.  571; 
Bowden    v.   Beauchamp,   2    Atk.    82. 
Dismissal  of  a  bill  for  want  of  neces- 
sary parties  should  be  without  preju- 
dice.    3Iims  v.  3Iims,  3  J.  J.  Marsh. 
105;    Steele   v.   Lewis,   1    Monro  49; 
Van  Epps  V.  Van  Deusen,  4  Paige  64. 
The  Chancellor  has  power  to  dismiss 
the  complainant's  bill,  without  preju- 
dice, for  gross  negligence  in  failing  to 
prepare    his    suit    without    showing 
cause  for  delay.   McDonald  v.  Logsdon, 
3  Bibb  229.      An  order  of  dismissal, 
so  far  as  it  respects  the  parties  preju- 
diced thereby,  was  vacated  after  the 
lapse  of  three  years  from  the  date  of 
the   order.     Collins  v.  Taylor,  3    Gr. 
Ch.  163.     Whenever  any  suit  or  pro- 
ceeding shall  be  dismissed,  in  pursu- 
ance of  the  consent  or  agreement  of 
the   parties,  no   enrollment   shall    be 
necessary;  nor  shall  any  fees  be  taxed 
therefor ;  either  party,  however,  may. 


at  his  or  their  own  expense,  require 
the  same  to  be  enrolled.  Eev.,  "  Chan- 
cery," I  52. 

{b)  If  the  complainant  does  not  file 
exceptions  to  the  defendant's  answer, 
or  a  replication,  or  set  the  cause  down 
for  hearing  on  bill  and  answer  within 
thirty  days  after  the  expiration  of  the 
time  limited  or  granted  for  filing  the 
answer,  his  bill  will  be  dismissed, 
with  costs,  unless  good  cause  be  shown 
to  the  contrary.  Rev.,  "  Chancery,"  § 
33.  And  where  a  replication  has 
been  filed,  if  the  cause  shall  not  be  set 
down  for  hearing  at  the  next  stated 
term  thereafter,  the  complainant's  bill 
will  be  dismissed,  with  costs,  unless 
the  court,  on  just  cause  and  reason- 
able terms,  allow  further  time  for  the 
hearing;  and  if  the  hearing  be  not 
had  within  the  time  so  limited  or 
allowed,  then  the  court  shall  dismiss 
the  bill,  with  costs ;  but  if  there  shall 
not  be  fifteen  days  between  the  filing 
of  the  replication  and  the  next  stated 
term,  then  the  hearing  shall  be  had  at 
the  subsequent  stated  term  or  at  a 
special  term.  Rev ,  "  Chancery,"  §  47. 
If  the  complainant  shall  not  attend 
at  the  time  appointed  for  the  hearing 
of  the  cause,  his  bill  shall  be  dis- 
missed, with  costs  Id.,  I  48.  It  has 
been  held  that  the  statute  {ReV', 
"Chancery,"  I  47,)  has  rendered  the 


142 


FORMS  OF   PLEADINGS. 


Order  to  dismiss  bill  for  want  of  prosecution.(a) 

{Title  of  cause.) 

This  matter  being  opened,  &c.,  and  it  appearing  that  due 
notice  has  been  given  to  the  complainant  of  this  application  : 
It  is,  &c.,  on  motion  as  aforesaid,  "  and  on  hearing,  , 

of  counsel  with  the  complainant,  in  opposition  thereto,"  ordered 
that  the  bill  of  complaint  in  this  cause  be  and  the  same  is  hereby 
dismissed,  with  costs. 


English  practice  (sfe  Orders  in  Chan- 
cery, XVII,)  inapplicable  in  cases 
where  the  cbmplaiuant  fails  to  bring 
the  cause  to  a  hearing  at  the  first 
stated  term  after  the  filing  of  the 
replication.  West  v.  Paige,  1  Slock. 
203.  The  court  may,  of  its  own 
accord,  at  its  discretion,  dismiss  the 
bill  when  it  appears  on  the  hearing 
that  the  complainant  has  a  complete 
and  adequate  remedy  at  law,  notwith- 
standing the  objection  was  not  taken 
in  the  pleadings  nor  noticed  at  the 
argument.  Cutting  v.  Dana,  \0  C.  E. 
Gr.  265.  That  one  defendant  puts  in 
a  plea,  and  does  not  set  it  down,  or  the 
solicitors  agree  to  delay  the  cause 
unreasonably,  is  no  excuse  for  the 
complainant,  upon  an  application  to 
dismiss  the  bill  for  want  of  prosecu- 
tion by  another  defendant  who  has 
answered.  Winans  v.  Wahvorth,  July, 
1823. 

(a)  If  a  suit  be  suffered  to  lie  without 
substantial  prosecution  for  one  year, 
it  is  considered  as  abandoned,  and  a 
motion  may  be  made  on  five  days' 
notice  to  the  complainant  or  his  solic- 
itor to  dismiss  the  bill.  Rule  30.  This 
rule  can  only  be  taken  advantage  of 
by  application  to  the  court  before 
the  defendant  has  taken  steps  which 
amount  to  a  waiver  of  the  rule.  Home 
Ins.  Co.  V.  Hoivell,  9  C.  E.  Gr.  238. 
The  court  will  not,  on  motion  to  dis- 


miss for  want  of  equity,  dismiss  a  bill 
without  going  into  a  full  hearing, 
unless  it  appear  very  strongly  on  the 
face  of  the  proceedings  that  the  com- 
plainant has  no  ground  of  complaint, 
or  that  the .  court  cannot  grant  the 
relief  prayed.  Hohnan  v.  Salman,  3 
Dessaus.  210.  Where  no  relief  was 
prayed  for  against  a  defendant,  and  he 
was  not  compellable  to  answer  the 
prayer  for  discovery,  the  bill  was  dis- 
missed as  to  him  on  demurrer.  Pat- 
terson V.  Patterson,  1  Hayiv.  167.  A 
bill  was  dismissed  for  want  of  prose- 
cution, pending  a  notice  given  by  the 
defendant  of  a  motion  to  dissolve  an 
injunction  which  the  complainant  had 
obtained.  Farquharson  v.  Pitcher,  3 
Puss.  383.  It  was  held  that  a  motion 
to  dismiss  a  bill  to  perpetuate  testi- 
mony for  want  of  prosecution  was 
irregular,  and  that  the  proper  appli- 
cation is,  that  the  complainant  may 
proceed  within  a  given  time,  or  may 
pay  the  defendant  his  costs.  Wright 
V.  Tatham,  2  Sim.  459.  Where  a  bill 
is  dismissed  for  want  of  prosecution,  it 
operates  as  a  discontinuance  and  does 
not  prevent  the  bringing  of  a  new  bill. 
McBroom  v.  Somerville,  2  Stew.  (Ala.) 
515.  Where  the  defendant  gave  notice 
to  dismiss,  and  two  days  aftewards  the 
complainant  obtained  an  order  to 
amend,  the  notice  to  dismiss  was  never- 
theless granted.    Swinfen  v.  Swinfen,  3 


REPLICATION. 


143 


REPLICATION. 


General  replication.(a) 

{Title  of  cause.) 

The    replication   of  ,  complainant,  to   the   answer   [or 

"  answers/')  of  defendant  {or  "  defendants.") 


Sim.  384.  A  person  named  as  a  de- 
fendant in  the  prayer  for  process  may 
appear  and  answer,  without  service  of 
subpcvna,  and  when  the  time  has 
expired,  apply  to  dismiss  the  bill  for 
want  of  prosecution.  Hume  v.  Bab- 
ington,  1  Hogan  8. 

The  dismissal  of  a  bill  in  chancery 
is  not  conclusive  against  the  com- 
plainant in  a  court  of  law,  although 
the  bill  may  have  been  brought  for 
the  same  matter.  Wright  v.  De  Klyne, 
1  Pet  C.  C.  199.  A  decree  of  dis- 
missal may  be  set  aside  on  the  ground 
of  surprise  and  laches  of  a  solicitor. 
Boone  v.  RicJgway's  Ex'rs,  12  C.  E.  Or. 
297.  It  was  held  that  where  both  parties 
had  the  right  to  bring  the  cause  to  a 
hearing,  a  motion  to  dismiss  the  bill 
for  want  of  prosecution  was  irregular. 
Whitney  v.  Mayor,  &c.,  1  Paige  548. 

(a)  The  form  of  replication  here 
given  is  the  same  in  case  of  a  plea. 
Where  the  complainant  has  taken 
issue  upon  a  plea,  by  filing  a  repli- 
cation thereto,  either  party  may 
enter  the  plea  for  argument  at  the 
next  or  any  subsequent  term.  Rule 
13.  When  the  complainant  conceives 
the  plea  to  be  good,  thougli  not  true, 
he  may  reply  to  and  take  issue  upon 
it  as  in  case  of  an  answer.  Rev., 
"  Chancery,"  §  29.  Every  cause  in 
the  Court  of  Chancery  shall  be  deemed 
to  be  at  issue  on  the  filing  of  a  repli- 
cation ;  and  it  shall  not  be  necessary 


to  issue  a  subpoena  or  enter  a  rule  to 
re-join  in  any  case.  Rev.,  "  Chancery", 
?  40.  Only  one  replication  is  to  be 
filed  in  each  cause,  unless  the  court 
otherwise  directs.  See  Dan  Ch.  829. 
The  use  of  a  special  replication  to 
an  original  bill  has  been  discon- 
tinued. If  the  complainant  wants  to 
avoid  the  effect  of  matter  pleaded 
in  bar,  his  proper  course  is  to  apply 
to  amend  the  charging  part  of  his 
bill.  1  Barb  Ch.  Pr.  250 ;  MeClane 
V.  Shepherd,  6  C.  E.  Gr.  78.  By 
the  forty-fifth  equity  rule  of  the 
United  States  Courts,  it  is  provided 
that  no  special  replication  shall  be 
filed.  But  if  any  matter  alleged  in 
the  answer  renders  it  necessary  for  the 
complainant  to  amend  his  bill,  he 
may  have  leave  to  amend  the  same, 
with  or  without  costs,  in  the  discretion 
of  the  court. 

The  replication  must  be  filed  within 
thirty  days  after  the  expiration  of 
the  time  limited  or  granted  for  filing 
the  answer.  Rev.,  "Chancery,"  §  33. 
When  a  replication  has  been  filed  and 
the  taking  of  proofs  begun  by  either 
party,  the  complainant  shall  not  be 
at  liberty  to  dismiss  his  bill  except 
upon  special  motion  and  notice  to  the 
defendants,  and  in  any  such  cause,  if 
the  complainant  shall  fail,  within  ten 
days  after  the  expiration  of  the  time 
to  take  testimony,  to  notice  the  cause 
for  argument,  the  defendant  shall  be 


144 


FORMS   OF   PLEADINGS. 


The  replication  of 


,  complainant,  to  the  plea  of 
defendant. 


The  complainant  joins  issue  on  the  answer  (or  "plea")  of 

the  defendant. 

{Signature  of  solicitor.) 

The  replication  puts  the  cause  at  issue,  and  the  parties  are  required  to  pro- 
ceed with  their  testimony,  pursuant  to  rules  Nos.  78  and  80-86.  As  to  testi- 
mony taken  on  an  issue  joined  on  a  plea,  see  rule  91. 


entitled  of  course  to  an  order  directing 
the  complainant  to  show  cause  why 
the  defendant  should  not  he  permitted 
to  notice  the  cause  for  argument  and 
bring  on  the  hearing  thereof  at  the 
next  stated  term  ;  and  if  cause  be  not 
shown  to  the  contrary,  the  defendant 
may  be  permitted  to  give  notice  and 
bring  on  the  hearing  of  the  cause. 
Rule  15.  If  no  replication  has  been 
filed,  the  facts  stated  in  the  answer 
must  be  taken  as  true  on  the  hearing. 
But  if  the  counsel  on  both  sides  acted 
under  the  same  misapprehension  that 
a  replication  had  been  filed,  when  in 
fact  it  had  not,  and  the  evidence  in 
the  cause  had  been  taken,  the  filing  of 
the  replication  would  be  regarded  as 
a  mere  form,  and  be  permitted  at  the 
hearing  as  a  matter  of  course.  Gas- 
kill  V.  Sine,  2  Beas.  130.  Every  alle- 
gation of  the  answer  which  is  not 
directly  responsive,  but  sets  forth 
matter  in  avoidance  or  bar,  is  denied 
by  the  general  replication,  and  must 
be  proved  aliunde.  Loveit  v.  Demarest, 
1  Hal.  Ch.  113.  In  a  proper  case,  to 
prevent  injustice,  the  court  will  direct 
a  replication  to  be  filed  nunc  pro  tunc. 
Scott  V.  Clarkson,  1  Bibb  277  ;  Rodney 


V.  Hare,  ^Tos.  296 ;  Peirce  v.  West,  1 
Pet.  C.  C.Sol;  Evans  v.  Veysey,  McCle. 
341.  The  filing  of  a  replication  after 
notice  given  of  a  motion  to  dismiss 
the  bill  for  failure  to  file  it,  is  good 
cause  against  the  motion,  but  in  such 
case  the  complainant  must  pay  costs. 
Griav'old  V.  Inman,  Hopk.  86.  If  it 
become  necessary,  after  filing  the 
replication,  to  amend  the  bill,  a 
special  motion  should  be  made  to  the 
court  for  leave  to  withdraw  the  repli- 
cation and  amend.  Proof  must  be 
made,  at  the  hearing  of  the  motion, 
that  the  matter  of  the  proposed 
amendment  is  material,  and  that  the 
complainant  could  not,  with  reason- 
able diligence,  have  sooner  introduced 
the  new  matter  into  his  bill  1  Dan. 
Ch.  Pr.  834;  Calanan  v.  Salway, 
McCle.  598 ;  S.  C,  13  Price  799.  A 
replication  to  a  plea  is  an  admission 
of  its  sufficiency  in  point  of  equity ; 
and  all  the  defendant  has  to  do  is  to 
prove  it,  in  point  of  fact.  Hughes  v. 
Blake,  6  Wheat.  472;  see  Flagg  v. 
Bonnell,  2  Stock.  82 ;  Davison  v.  John- 
son, 1  C.  E.  Or.  112;  McEican  v. 
Broadhead,  3  Stock.  129. 


EXAMINATION    BEFOEE   COMMISSIONERS. 


145 


TESTIMONY. 


Notice  of  motion  for  an  order  for  the  examination 
of  witnesses  de  bene  esse. (a) 

(Title  of  cause.) 
As  in  form  on  page  148  to  *,  then,  "for  an  order  appointing 
,  of  ,  in  the  of  ,  in  the  county  of 

,  and  State  of  ,  a  commissioner  to  take  the  testi- 

mony of  ,  a  witness  in  the  above-stated  cause,  residing  in 

,  in  the  county  of  ,  and  State  of  ,  on  behalf 

of  the  complainant. 

{Signature  of  solicitor.) 
To  ,  esquire,  Solicitor  of  defendant. 


(a)  Either  party  in  a  civil  cause 
desiring  the  testimony  of  any  witness 
who  resides  out  of  this  state,  may, 
instead  of  taking  his  testimony  by 
commission,  take  the  testimony  of 
such  witness  de  bene  esse,  before  any 
judge  of  any  Supreme,  Circuit  or  Dis- 
trict Court,  or  Court  of  Common  Pleas, 
of  the  state  where  such  witness  is,  or 
before  any  commissioner  of  deeds,  &c., 
appointed  by  the  governor  of  this 
state,  resident  in  the  state  where  such 
witness  is,  or  before  a  commissioner 
specially  appointed  for  that  purpose 
by  the  court  in  which  such  action  is 
pending.  Notice  in  writing  of  the 
time  and  place  of  such  examination 
and  of  the  names  of  the  witnesses  to 
be  examined,  must  be  given  to  the 
adverse  party  or  his  solicitor,  which 
notice  must  be  served,  not  less  than  at 
the  rate  of  one  day  (Sundays  excluded) 
for  every  fifty  miles  of  travel ;  in  all 
cases,  at  least  ten  days'  notice  (ex- 
clusive of  Sundays)  must  be  given. 
Where  the  witness  whose  testimony  is 
desired  resides  in  any  foreign  state  or 
kingdom  or  on  the  Pacific  coast,  the 
court  must  direct  what  notice  shall  be 


given.  The  officer  taking  the  testi- 
mony must  first  take  an  oath  fairly 
and  impartially  to  take  the  same, 
before  some  person  authorized  to  ad- 
minister an  oath  in  the  place  where 
he  resides.  The  oath  to  be  taken  by 
the  witness  must  be  administered 
according  to  the  laws  of  this  state. 
The  interrogatories  and  the  answers 
thereto  must  be  reduced  to  writing 
by  the  officer  taking  the  testimony 
and  subscribed  in  his  presence  by  the 
deponent,  and  must  be  certified,  sealed 
up,  endorsed  and  directed  in  the  same 
manner  as  is  required  in  cases  where 
a  commission  has  issued.  This  pro- 
vision applies  to  any  proceeding  in 
the  Court  of  Chancery.  Rev.,  "  Evi- 
dence," §1  38,  39.  The  examination 
of  a  witness  de  bene  esse  takes  place 
where  there  is  danger  of  losing  his 
testimony  from  death,  by  reason  of  old 
age  or  dangerous  illness,  or  his  ab- 
sence from  the  state.  Rev.,  "Evi- 
dence," §  25 ;  or  in  the  case  of  his 
non-residence,  Id.,  H  29,  38.  In  such 
cases,  the  court,  to  prevent  the  party 
from  being  deprived  of  the  benefit  of 
his  evidence,  will  permit  his  deposi- 


146 


FOBMS  OF   PLEADINGS. 


Order  to  examine  a  witness  de  bene  esse. 
{Title  of  cause.) 

TJpon  opening  this  matter,  &c.,  and  it  appearing  that  due 
notice  of  this  application  has  been  served  upon  the  complainant 
{or  "  defendant,"  or  "  his  solicitor,"  as  the  case  may  be :)  It  is, 
on  this,  &c.,  ordered,  that  ,  of  ,  in  the  county  of 

,  and  State  of  ,  be  and  he  is  hereby  appointed  a 

commissioner  to  take  the  testimony  of  ,  of  ,  as  a 

witness  in  this  cause,  de  bene  ease;  and  that  ,  defendant  in 

this  cause,  attend  and  put  interrogatories,  if  he  shall  see  fit. 


Notice  of  examination  of  witnesses  de  bene  esse.(a) 

{Title  of  cause.) 
Sir — Take  notice,  that  ,  of  ,  will  be  examined  as 

a  witness  in  this  cause,  de  bene  esse,  at  the  office  of 


tion  to  be  taken  before  the  cause  is  at 
issue,  in  order  that  if  the  witness  die, 
or  he  be  not  forthcoming  to  be  exam- 
ined after  issue  joined,  the  depositions 
«o  taken  may  be  used  at  the  hearing. 
Hinde   368;    Leonard   v.   Sutphen,   3 
Sal.  Ch.  545 ;  Ogden  v.  Robertson,  3 
irr.  124.     An  order  for  the  examina- 
tion of  a  witness  de  bene  esse  on  the 
part  of  complainant  will  be  made, 
though  no  answer  has  been  put  in,  if 
the  necessity  for  taking  his  deposition 
is  satisfactorily   shown    by   affidavit. 
Fort  V.  Ragusin,  2  Johns.  Ch.   146; 
Byrne  v.  Byrne,  2  Mol.  440;  Brown 
V.  Greenly,  Dick.  504.    Parties  intend- 
ing to   apply   for   a    commission    to 
examine  a   witness,  must   give  eight 
(by  rule,  five)  days'  notice  of  such  ap- 
plication to  the  party  or  his  solicitor, 
and  of  the  name  of  the  witness,  and  of 
his  place  of  residence,  and  also  of  the 
name   of   the   person   he   intends   to 
nominate  as  commissioner,  and  must 
also  serve  with  the  notice  a  copy  of 
the    interrogatories    intended    to    be 
annexed    to   the   commission.      Reo., 
"Evidence,"  §  31,  and  rule  141.     The 


in 


issuing  of  the  commission  may  be 
ordered  and  the  interrogatories  ap- 
proved upon  shorter  notice,  by  con- 
sent of  parties  or  in  the  discretion  of 
the  court.  Id.,  §  32.  The  officer 
before  whom  the  deposition  is  to  be 
taken,  under  §  25,  must  cause  notice 
to  be  given  to  the  adverse  party  or  his 
solicitor  immediately  or  at  such  short 
day  as  the  case,  in  the  opinion  of  the 
said  officer,  may  require,  to  attend, 
and  be  present  at  the  taking  thereof, 
and  put  questions,  and  cross-examine, 
if  he  shall  think  fit.  Id.,  I  25.  For 
directions  as  to  the  manner  of  taking 
and  filing  such  depositions,  and  trans- 
mitting them  to  the  court,  see  Id.,  || 
27,  28. 

(a)  A  commissioner,  appointed  under 
Rev.,  "  Evidence,"  §  38,  has  no  power 
to  adjourn  the  examination,  but  only 
to  continue  it  when  once  commenced, 
from  day  to  day,  while  actually  pro- 
ceeding with  the  examination  of  wit- 
nesses. An  adjournment  does  not 
supply  the  place  of  the  notice  required 
by  the  statute.  Parker  v.  Hayes,  8  C. 
E.  Or.  186. 


EXAMINATION   BEFORE   COMMISSIONERS.  147 

the  city  of  ,  {or  as  the  case  may  be,)  on  the  day  of 

instant,  at  ten  o'clock  a.  m.,  before  ,  a  commis- 

sioner appointed  by  an  order  of  this  court,  dated  the  day 

of  instant. 

Yours,  <fec., 

{Signature  of  solicitor.) 
To  ,  esquire,  Sol'r  of  de/H  or  compl't. 

Affidavit  to  obtain  a  commission  to  examine  wit- 
nesses de  bene  esse  out  of  this  state. (a) 

{Title  of  cause.) 
State  of  ,  I 

county  of        , ) 

,  one  of  the  defendants,  {or  "  the  complainant ")  in  this 
cause,  being  duly  sworn,  deposes  and   says — That  is  a 

material  witness  in  this  cause,  and  *  resides  in  ,  in  the 

county  of  ,  and  State  of  ,  {or  after  *,  "  is  out  of 

this  state,")  and  that  deponent  cannot  safely  proceed  to  a  hear- 
ing of  this  cause  without  the  benefit  of  his  testimony. 

{Jurat.)  {Signature.) 

(a)  If  a  material  witness  in  any  is  at  issue.  In  such  case  a  commis- 
action  or  proceeding  of  a  civil  nature  sion  for  the  examination  of  a  witness 
in  any  of  the  courts  of  this  state  reside  out  of  this  state  (whether  his  resi- 
out  of  the  state,  it  shall  be  lawful  for  dence  be  in  the  state  or  not,)  may  be 
the  court,  in  term  or  vacation,  on  applied  for,  in  term  or  vacation,  upon 
afiBdavit  or  proof  thereof  to  the  satis-  affidavit  stating  that  the  witness  is 
faction  of  the  court,  and  on  such  terms  material,  and  that  the  party  applying 
as  the  court  may  direct,  to  award  and  cannot  safely  proceed  to  a  hearing  of 
issue,  under  the  seal  of  the  court,  a  the  cause  without  his  testimony ;  and 
commission  to  such  person  or  persons  upon  giving  five  days'  notice  of  the 
as  the  court  may  think  fit,  authorizing  intended  application,  with  the  name 
him  or  them  to  examine,  de  bene  esse,  or  names  of  the  witnesses,  their  resi- 
the  said  M-itness  on  oath  or  affirma-  dence,  and  the  name  or  names,  addi- 
tion. Eer.,  "  Evidence,"  'i  29.  In  tions  and  residences  of  such  person  or 
cases  where  the  application  is.  not  to  persons  as  the  party  applying  intends 
examine  witnesses  de  bene  esse,  a  com-  to  nominate  as  commissioner  or  com- 
xnission  can  issue  only  after  the  cause  missioners.     Bide  96. 


148  FORMS   OF   PLEADINGS. 

Notice  of  motion  for  a  commission  to  examine  a 

witness.(a) 

{Title  of  cause.) 

Take  notice,  that  I  shall  apply  to  the  Chancellor  of  this  state, 
on  Tuesday,  (or  "  Monday,"  if  at  chambers,)  the  day  of 

next,  {or  "  instant,")  at  ten  o'clock  in  the  forenoon,  or 
as  soon  thereafter  as  counsel  can  be  heard  thereon,  at  the 
State-house  in  the  city  of  Trenton,  {or,  "  at  the  chancery 
chambers  in  the  city  of  *,")  for  an  order  that  **  a  com- 

mission issue,  under  the  seal  of  this  court,  directed  to  , 

of  ,  as  commissioner  to  take  the  examination  of  , 

a  witness  in  this  cause,  residing  at  ,  in  ,  upon  the 

accompanying  interrogatories. 

Order    for  commission   to  examine  witnesses    de 
bene  esse.(6) 

{Title  of  cause.) 

As  on  page  36  to  *,  then,  by  affidavit,  to  the  satisfaction  of  the 
Chancellor,  that  is  a  material   witness  for  complainant 

{or  "  defendant ")  in  this  cause,  and  that  the  said  resides 

at  ,  in  the  county  of  ,  in  the  State  of  ,  {or 

(a)  A  party  intending  to  apply  for  (6)  If  the  party  to  whom  notice  is 

a  commission  to  examine  a  witness  or  given,  as  mentioned  in  rule  96,  intend 

witnesses  in  any  cause,  shall  give  to  to   join   in   the   commission,   and   to 

the  party  or  to  his  solicitor,  if  he  ap-  name    any   other    commissioners,   he 

pears  by  solicitor,  five  days'  notice  of  shall  give  notice  to  the  adverse  party 

such  application,  and  of  the  name  or  two  days  before  the  intended  appli- 

names  of  the  witness  or  witnesses,  to  cation,  and   of  the   name   or   names, 

be  examined,  and  of  the  place  of  his  additions  and  residence  of  the  persons 

or   their   residence,  and   also   of  the  whom  he  proposes  for  commissioners ; 

name  or  names  of  the  person  or  per-  the  Chancellor  will  appoint  the  com- 

sons  whom  the  party  applying  intends  missioners  to  execute  the  commission, 

to   nominate    as    commissionei"s,   and  and   the  party  first  applying  for  the 

shall   serve  therewith  a  copy  of  the  commission  shall  sue  out  and  forward 

interrogatories  intended  to  be  annexed  the  same ;   but  if  he  shall  unreason- 

to  the  commission,  in  order  that  the  ably  delay  so  to  do,  the  other  party 

adverse  party  may  examine  the  same  may  forward  and  cause  it  to  be  exe- 

and  submit  cross-interrogatories,  if  he  cuted  and  returned.    Rule  97.    By  the 

thinks   proper.     Rev.,  "  Evidence,'^    ?  English  practice,  depositions  taken  de 

31 ;  rule  96  ;  Wilson  v.  Cornell,  1  South.  bene  esse  can  never  be  used,  except  for 

*117.  the  purpose  of  supplying  the  want  of 


EXAMINATION    BEFORE   COMMISSIONERS. 


149 


"in  England,"  or  as  the  case  may  be,)  and  that  the  said  com- 
plainant cannot  safely  proceed  to  the  hearing  of  this  cause  with- 
out the  benefit  of  his  testimony :  It  is,  on  this,  &c.,  ordered, 
that  a  commission  issue  out  of,  and  under  the  seal  of  this  court, 
directed  to  ,  of  ,  in  the  county  of  ,  and  State 

of  ,  authorizing  him  to  examine,  de  bene  esse,  the  said 

witness  above  named,  on  oath  or  affirmation,  upon  the  inter- 
rogatories annexed  to  said  commission,  and  to  reduce  such 
examination  to  writing,  and  to  return  the  same,  annexed  to  the 
said  commission,  into  this  court,  on  or  before  the  day  of 

next,  (a) 


an  examination-in-chief.     If  the  wit- 
ness is  alive  or  in  the  state,  he  must  be 
examined-in-chief,  and  proof  should 
be  made,  at  the  hearing,  to  the  satis- 
faction of  the  Chancellor,  of  the  death 
or  absence  of  the  witness  when   the 
proofs-in-chief  were  taken.     Cann  v. 
Cann,  1  P.  Wms.  567  ;  Hinde  368, 387. 
By  statute,  in  New  Jersey,  the  exami- 
nation of  any  witness  by  commission 
or    deposition    taken,    returned    and 
filed,  as  provided  for  in  the  act,  {Rev., 
"Evidence,"  p.  378,)  or  a  duly-certified 
copy  thereof,  shall   be   as   competent" 
evidence  in  the  cause  in  which  it  shall 
be  taken,  as  if  such  witness  had  been 
examined  in  open  court  on  the  hear- 
ing or  trial  thereof,  proof  being  first 
made  to  the  satisfaction  of  the  court 
that  such  witness  resides,  or  is  out  of 
the  state,  or  is  dead,  or  by  reason  of 
age,  sickness   or    bodily   infirmity   is 
unable  to  attend  the  court,  and  if  the 
testimony  be  taken  under  the  thirty- 
eighth  section  of  the  said  act,  on  proof 
being  made  that  notice  of  the  taking 
thereof   was    given   as    therein    pre- 
scribed.  Rev.,  "Evidence,"  §  42 ;  Law- 
rence V.  Finch,  2   C.  E.  6r.  235.     If 
the  deposition  be  admitted  in  evidence 
at  the  hearing  of  the  cause,  the  ab- 


sence of  the  witness  from  the  state  at 
the  time  of  the  hearing  will  be  pre- 
sumed, unless  the  contrary  appear. 
See  Burley  v.  Kitchell,  Spen.  305.  The 
depositions  shall  be  subject  to  objec- 
tions as  to  competency,  &c.,  but  shall 
not  be  excepted  to  or  excluded  for 
informality,  if  the  court  in  which  it  is 
offered  shall  be  satisfied  that  the  testi- 
mony of  the  witness  has  been  fairly 
and  truly  taken  and  returned.  Rev., 
"Evidence,"  ^  43.  If  the  evidence 
was  competent  when  given,  the  death 
of  the  witness  or  of  the  other  party 
before  the  trial  will  not  exclude  it. 
Lawrence  v.  Finch,  supra. 

(a)  Every  order  for  a  commission 
shall  fix  a  time  for  the  return  of  the 
commission,  and  it  shall  not  be  used 
if  not  returned  within  such  time, 
unless  the  time  be  extended  by  an 
order  for  that  purpose.  Rule  97.  The 
party  requiring  such  examination  or 
deposition  shall  be  at  the  sole  expense 
thereof,  and  shall  not  have  any  allow- 
ance for  the  same  in  the  taxation  of 
costs.  Rev.,  "Evidence,"  I  44.  The 
taking  out  of  a  commission  for  the 
examination  of  witnesses  shall  not  be 
a  stay  of  proceedings  in  the  cause. 
Id.,  {aQ  ;  Stokes  v.  Garr,  2  Harr.  451. 


150  FORMS   OP   PLEADIKGS. 

Commission  for  examination  of  witnesses  out  of 

the  state. (a)     New  Jersey,  ss. — The  State  of  New  Jersey  to 

,  of  ,  in  the  county  of  ,  and  State  of 

— Greeting : 

Know   ye,  that   we,  in   confidence   of   your   prudence   and 
fidelity,  have  appointed  you,  and  by  these  presents  do 
[l.  s.]    give  unto  you,  full  power  and  authority  diligently  to 
examine  and  ,  of  ,  in  the  county  of  , 

in  -  ,  [upon  certain  interrogatories,  to  be  exhibited  to  you,] 

"  as  well "  on  the  part  of  the  complainant,  ,  "as  upon  the 

part  of  the  defendants,  and  ,  or  either  of  them  ;  " 

and  therefore  we  command  you,  that  at  certain  days  and  places, 
to  be  appointed  by  you  for  that  purpose,  [having  given  due 
notice  of  such  examination  to  the  solicitor  of  the  opposite  party,} 
you  do  cause  the  said  witnesses  to  come  before  you,  and  then 
and  there  examine  each  of  them  [upon  the  said  interrogatories,] 
on  their  respective  corporal  oaths  or  aflBrmations,  first  taken 
before  you,  and  that  you  do  take  such  their  examination  and 
cause  the  same  to  be  reduced  to  writing  and  signed  by  said  wit- 
nesses and  by  yourself;  and  when  you  have  so  taken  them,  you 
are  to  send  them  to  us,  in  our  Court  of  Chancery,  without  delay, 
closed  up  under  your  seal,  distinctly  and  plainly  set,  [together 
with  the  said  interrogatories,]  and  this  writ.  And  we  further 
command  you,  before  you  act  in  or  be  present  at  the  swearing  or 
examining  of  any  witness  or  witnesses,  you  do  take  the  oath 
specified  in  the  schedule  hereto  annexed,  before  some  person 
competent  to  administer  the  same. 

(a)  The  name  of  every  witness  to  shall  be  furnished  six  days,  and  copies 

be  examined  by  virtue  of  the  commis-  of  the  cross-interrogatories   two  days 

sion  must  be  inserted  therein,  and  the  before  the  time  of  submitting  the  same 

interrogatories  to  be  administered  to  to  the  Chancellor   for   his  approval ; 

the  witness  having  been  first  drawn  and  notice  of  the  time  and  place  of 

and   signed   by   the   parties  or   their  such  submission  shall  be  served  with 

counsel,  annexed  to  the  commission  ;  the  interrogatories,  at  which  time  and 

and  copies  of  the  interrogatories  fur-  place   the   cross-interrogatories    shall 

nished   to   the   opposite   party,   ;'.   e.,  also  be   submitted.     Rule  98;    Mev.,. 

copies    of   all    direct    interrogatories  "Evidence,"  I  30.  • 


EXAMINATION    BEFORE   COMMISSIONERS.  151 

Witness  ,  Chancellor  of  the  State  of  New  Jersey,  at 

Trenton,  this  day  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 

Cleric. 

Commissioner's  oath.(a)  I  do  swear,  [or,  being  consciea- 
tiously  scrupulous  of  taking  an  oath,  do  solemnly,  sincerely  and 
truly  declare  and  affirm,]  that  I  will  faithfully,  fairly  and  im- 
partially execute  the  annexed  commission  to  the  best  of  my  skill 
and  knowledge  [so  help  me  God.] 

{Signature  of  commissioners.) 

Sworn  {or  affirmed)  and  subscribed  before  me,  at  ,  in 

the  county  of  ,  a  for  said  county,  this  day  of 

,18     . 

Directions  for  the  execution  of  a  commission  by 
commissioners. 

1.  The  commissioner  to  whom  the  commission  is  delivered 
should  keep  it,  unopened,  until  the  day  of  attendance,  and  give 
six  days'  notice,  in  writing,  of  the  time  and  place  of  executing 
it  to  all  the  other  commissioners,  if  there  be  more  than  one.(6) 

2.  The  commissioners,  before  they  enter  upon  their  duties, 
must  take  an  oath  or  affirmation  {see  form  of  oath  above,)  faith- 
fully, fairly  and  impartially  to  execute  the  commission,  before 
any  person  lawfully  authorized  to  administer  an  oath  or  affir- 
mation in  the  state,  territory  or  kingdom  where  the  commis- 
sioners reside  or  may  be  at  the  time.(c) 

(a)  The  commissioner  or  commis-  may  be  taken  before  any  person  law- 

sioners  appointed  under  the  statute  or  fully  authorized  to  administer  an  oath 

under  the  general  power  or  authority  or  affirmation  in  the  state,  territory 

of  the  Court  of  Chancery,  or  such  of  or  kingdom  where  the  said  commis- 

them  as  shall  act,  shall,  before  they  sioner  or  commissioners  reside  or  may 

enter  upon  their  duties,  take  an  oath  be  at  the  time.     Rev.,  "Evidence"  § 

or   affirmation   faithfully,  fairly   and  33 ;  Laurence  v.  Finch,  supra. 
impartially  to  execute  the  said  com-  (6)  Hinde  234. 

mission ;    which   oath   or   affirmation  (c)  Rev.,  "Evidence,"  §  33. 


152  FORMS   OF   PLEADINGS. 

3.  On  the  day  appointed,  those  who  attend  will  proceed  to 
execute  the  commission ;  and  in  case  any  do  not  attend,  a  minute 
should  be  made,  at  the  head  of  the  depositions,  to  the  following 
effect :    We  (or  "  I ")  certify  that  on  ,  the  day  of 

,  18     ,  at  ,  being  the  day  and  place  appointed  for 

executing  the  commission  to  us  (or  "  me  ")  directed,  we  {or  "  I ") 
attended  to  execute  the  same,  and  that  ,  named  in  such 

commission,  neglected  to  attend,  due  notice  of  the  said  time  and 
place  having   been  given  him,  as  appears  by  the  affidavit  of 

hereto  annexed. 

4.  When  one  or  more  commissioners  are  named  in  the  com- 
mission on  behalf  of  the  adverse  party,  in  addition  to  those 
named  on  the  part  of  the  party  applying  for  the  commission, 
two  commissioners  may  act,  if  the  rest  do  not  attend. (a) 

5.  The  oath  to  be  administered,  unless  the  witness  be  of  a 
religion  other  than  the  Christian,  is  as  follows^the  witness  lay- 
ing his  hand  on  and  kissing  the  Book  of  the  Gospels  :(b) 

"  You  do  swear,  that  the  answers  given  by  you  to  the  inter- 
rogatories which  shall  be  proposed  to  you,  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  so  help  you  God  ?  " 
( Or,  if  the  witness  desire  it,  he  may  be  sworn  as  follows — holding 
up  his  hand  instead  of  as  above :  "  You  do  swear,  by  the  ever- 
living  God,  that  the  answers,"  &c.,  conclude  as  in  preceding 
form.){c) 

If  the  witness  declare  that  he  is  conscientiously  scrupulous  of 
taking  an  oath,  then  as  follows :    "  I,  ,  do  solemnly,  sin- 

cerely and  truly  declare  and  affirm,"  &c.,  (conclude  as  above, 
omitting  the  words,  "  so  help  me  God."  Or,  if  such  person  shall 
choose  to  declare :   "  I,  ,  do  declare,  in  the  presence  of 

Almighty  God,  the  witness  of  the  truth  of  what  I  say — "){d) 

(a)  Id.,  I  29.  .  must  be  made  according  to  the  form 

(6)  Mev.,  "Oaths  of  Public  Officers,"  and  solemnities  of  the  Jewish  religion. 

§  23.  Newman  v.  Newman,  3  Hal.  Ch.  26  ;  1 

(c)  Id.,  U  22,  23.  Vernon  263. 

(d)  Id.,  I  26.     The  oath  of  a  Jew 


EXAMINATION   BEFOKE  COMMISSIONERS.  153 

6.  The  commissioners  will  cause  the  examination  of  each  wit- 
ness to  be  reduced  to  writing,  and  to  be  subscribed  by  him ;  and 
the  commissioners  who  are  present  shall  also  sign  the  same,  (a) 

7.  The  heading  or  title  of  the  depositions  is  as  follows : 
"  Depositions  of  witnesses  produced,  sworn  {or  "  aflBrmed  ")  and 
examined  the  day  of  ,  18  ,  at  ,  under  and 
by  virtue  of  a  commission  issued  out  of  the  Court  of  Chancery 
of  New  Jersey,  in  a  certain  cause  therein  depending,  wherein 

is  complainant,  and  and  others  are  defendants. 

,  of  the  of  ,  in  the  State  of  ,  a  wit- 

ness produced  on  the  part  of  the  ,  being  duly  sworn  (or 

"  affirmed,")  deposes  and  says  : 

First. — To  the  first  interrogatory,  he  says  :  (and  so  on  through 
the  direet-interrogatories.) 

To  the  first  cross- interrogatory,  he  says :  {and  so  on  through 
the  cross-interrogatories.) 

When  the  deposition  is  finished,  it  should  be  subscribed  by 
the  witness,(6)  and  certified  in  the  following  form : 

"Examination  taken,  reduced  to  writ--) 

ing,  and  sworn,  this         day  of        ,  >■  {Signature  of  witness.) 
before — "    {Signature  of  eomm'rs.)   J 

8.  If  any  exhibits  are  produced  and  proved  before  the  com- 
missioners, they  shall  be  annexed  to  the  depositions  to  which 
they  relate,  and  shall  be  certified  by  the  commissioners,  or,  if 
requested  by  the  party  producing  the  exhibit,  they  will  mark  it 
as  an  exhibit  in  the  suit,  and  return  it  to  the  party  offering  it.(c) 

9.  The  commissioners  will  endorse  on  the  back  of  the  com- 
mission the  following  return  :  "  The  execution  of  the  foregoing 
commission  appears  by  the  depositions  and  exhibits  hereunto 
annexed."  ,  {Signatures  of  commissioners.) 

(a)  Rev.,  '^Evidence,"  ^   34.     Depo-  same,  and  subscribed  by  the  deponent 

sitions  de  bene  essf,  taken  under  the  in  his  presence.     Id.,  §  38. 
thirty-eighth  section,  must  be  reduced  (6)  Id.,  I  27. 

to  writing   by  the  officer   taking  the  (c)  Id.,  I  40. 


154  FORMS   OF   PLEADINGS. 

10.  The  acting  commissioners  will  annex  the  interrogatories, 
depositions  and  exhibits  to  the  commission,  and  close  up  the  same 
under  their  hands  and  seals,  or  under  the  hands  and  seals  of  any 
two  of  them,  (usually  done  by  sealing  the  envelope  and  writing 
the  commissioners'  names  across  the  seals,)  and  direct  the  same 
to  the  Chancellor,  at  Trenton.  If  the  package  is  to  be  sent  by 
mail,  the  commissioners  may  place  the  same  in  any  post-office, 
certifying  thereon  the  time  when,  and  the  post-office  in  which 
the  same  may  be  so  placed,  as  follows :  "  Deposited  in  the  post- 
office  at  ,  this  day  of  ,  18     ,  by  us." 

[Signatures. ){a) 

11.  It  is  lawful  for  the  commissioners  to  deliver  the  commis- 
sion and  return  closed  up  and  directed  as  aforesaid,  to  the  party 
in  the  commission,  his  attorney  or  agent,  who  shall  deliver  the 
same  to  the  Chancellor ;  in  which  case  the  person  delivering  the 
package  will  be  required  to  make  oath  in  the  following  form : 
"  That  he  received  the  said  commission  and  return  sealed  up, 
from  the  hands  of  the  said  commissioners,  at  ,  on  the 

day  of  ,  18     ,  and  that  the  same  has  not  been 

opened  or  altered  since  he  received  it."(6) 

12.  In  the  case  of  a  commission  which  has  been  executed  in 
any  foreign  state,  nation  or  kingdom,  it  may  be  transmitted  to 
the  party  on  whose  application  it  was  issued,  his  agent  or  attor- 
ney in  the  United  States,  who  will  deliver  the  same  to  the 
Chancellor  or  the  clerk  of  the  court,  making  oath  or  affirmation 
when  and  how  he  received  it,  and  also  "  and  that  he  verily 
believes  that  it  has  not  been  opened  or  altered  since  it  was  closed 
up  and  sealed  as  aforesaid."(c) 

13.  If  the  commission  and  return  have  been  received  by  mail, 
the  Chancellor  or  clerk,  upon  being  satisfied  that  it  has  not  been 
opened  or  altered  since  it  was  closed  up  and  sealed,  will  open 
the  same,  and   endorse  thereon :    "  This   packet   received   this 

day  of  ,  sealed  up,  from  the  postmaster  at  , 

(a)  Id.,  I  35.  (c)  Id.,  §  37. 

(6)  Bev.,  "Evidence,"  I  36. 


LETTEES    ROGATORY. 


155 


and  opened  by  me,"  sign  it,  and  immediately  file  the  8ame.(a) 
If  the  packet  shall  be  delivered  by  the  party,  his  agent  or 
attorney,  the  endorsement  will  be  made  accordingly,  and  the 
affidavit  of  the  messenger  will  also  be  filed  with  the  commission 
and  return. (6) 

Letters  rogatory  .(c) 

The  State  of  New  Jersey  to  — Greeting  : 

Whereas,  a  certain  suit  is  pending  in  our  Court  of  Chancery, 

in  which  is  complainant  and  is  defendant, 

[l.  s.]    and  it  has  been  suggested  to  us  that  there  are  witnesses 

residing  within  your  jurisdiction  without  whose  testi- 
mony justice  cannot  be  completely  done  between  the  said 
parties,  we  therefore  request  you,  that  in  furtherance  of  justice, 
you  will,  by  the  proper  and  usual  process  of  your  court,  cause 
such  witness  or  witnesses  as  shall  be  named  or  pointed  out  to 


(a)  Id.,  I  35. 

(6)  Id.,  I  37. 

(c)  By  law  in  this  state  it  is  pro- 
vided that  in  case  a  commission  issued 
out  of  any  court  of  the  United  States 
or  of  any  state  or  territory  *  *  shall 
be  directed  to  any  person  in  this  state 
authorizing  him  to  examine  or  take 
the  deposition  of  any  witness  named 
in  such  commission,  and  the  person  to 
be  examined  under  such  commission 
shall  refuse  to  attend  and  give  testi- 
mony before  such  commissioner,  any 
justice  of  the  Supreme  Court  of  this 
state  may,  upon  application  made  to 
him  by  or  on  behalf  of  such  commis- 
sioner, and  upon  proof  being  made  of 
such  refusal,  make  an  order  awarding 
process  of  subpoena  out  of  the  said 
court  for  such  witness  to  appear  and 
testify  before  such  commissioner,  and 
upon  filing  such  order  in  the  clerk's 
office  of  the  said  Supreme  Court,  it 
shall  be  the  duty  of  the  said  clerk  to 
issue  process  of  subpoena  under  the 
seal  of  said  court  requiring  such  wit- 


ness to  appear  and  testify  before  such 
commissioner.  Rer.,  ^^ Evidence,''  ?  49. 
The  letters  rogatory  are  directed  to 
any  judge  or  tribunal  having  jurisdic- 
tion of  civil  causes  in  the  state  or 
foreign  country  where  the  witnesses 
are.  A  special  application  must  be 
made  to  the  court  where  the  suit  is 
pending,  for  such  letters. 

Although  statutes  similar  to  the 
above  doubtless  exist  in  most  of  the 
United  States,  it  is  assumed  that  in 
case  there  was  no  such  statute,  such 
letters  would  issue  and  be  recognized 
by  comity.  The  letters,  under  the 
seal  of  the  Court  of  Chancery,  to- 
gether with  the  commission  and  in- 
terrogatories annexed,  should  be  pre- 
sented to  the  judge  or  tribunal  to 
which  letters  are  directed,  who  could 
on  proper  application  make  order 
requiring  the  attendance  of  the  wit- 
nesses before  the  commissioner  named 
in  the  commission.  The  practice  is 
derived  from  the  civil  law. 


156  FORMS   OF   PLEADINGS. 

you  by  the  said  parties,  or  either  of  them,  to  come  before  you  or 

some  competent  person  by  you  for  that  purpose  to  be  appointed 

and  authorized,  at  a  precise  time  and  place  by  you  to  be  fixed, 

and  there  to  answer  on  their  oaths  or  affirmations  to  the  several 

interrogatories  hereto  annexed ;  and  that  you  will  cause  their 

depositions  to  be  committed  to  writing  and  returned  to  us  under 

cover  duly  closed  and  sealed  up,  together  with  these  presents. 

And  we  shall  be  ready  to  do  the  same  for  you  in  a  similar  case 

when  required. 

Witness  ,  our  Chancellor,  at  the  city  of  Trenton,  {date.) 

fa-       ,         r      T  -1     \  (Signature  of  clerk.) 

{otgnaiure  of  solicitor.)  ^    ^  '  ' 

Notice    by    part    of    the    commissioners    to    the 

others,  (a) 

[Title  of  cause.) 

The  subscriber  having  received  a  commission,  issuing  out  of 
and  under  the  seal  of  the  Court  of  Chancery  of  the  State  of 
New  Jersey,  directed  to  us  and  yourselves  as  commissioners  for 
the  examination  of  witnesses  in  a  certain  cause  depending  in 
said  court,  wherein  is  complainant,  and  is  defend- 

ant, hereby  give  you  notice  that  we  shall  proceed  to  execute  such 
commission  on  the  part  of  the  complainant  {or  "  defendant,")  on 
the  day  of  next,  {or  "  instant,")  at  ,  in  , 

at  o'clock  in  the  forenoon. 

{Signatures  of  commissioners.) 

Dated  ,18     . 

To  and  ,  esquires. 

Subpoena  ad  testificandum.(6) 

The  State  of  New  Jersey  to  — Greeting  : 

For  certain  reasons,  offered  before  us  in  our  Court  of  Chan- 
cery, we  command   you   that   you    personally  be  and 
[l.  s  ]     appear  before  ,  one  of  the  masters  and  examiners 

(a)    By   the   English   practice   the  it  is  directed,  and  keep  it  unopened 

commissioner    or    commissioners     to  until  the  day  of  attendance  specified 

whom   the   commission   is    delivered  in  the  notice.     Hinde  334,  362. 
must  give  six  days'  notice,  in  writing,  {h)  In  order  to  compel  the  attend- 

of  the  time  and  place  of  executing  it  ance  of  witnesses  who  reside   in  the 

to  the  other  commissioners  to  whom  state    before    the   examiners   of   the 


8UBPCENA   TO   TESTIFY. 


157 


in  our  Court  of  Chancery,  at  the  house  of  ,  in 

in  the  county  of  ,  on   the  day  of  next, 

at  o'clock  in  the  forenoon,  to  give  evidence  in  a  cer- 

tain cause  now  depending  in  our  said  Court  of  Chancery, 
wherein  is  complainant,  and  is  defendant.    {In  case 

the  witness  is  required  to  bring  with  him  any  written  paper  in  his 
possession,  say  here,  "and  that  you  then  and  there  produce," 
naming  the  document  or  paper  required.)  Hereof  fail  not,  under 
the  penalty  of  two  hundred  dollars. 

Witness  ,  our  Chancellor,  at  Trenton,  the  day 

of  ,  in  the  year  of  our  Lord  eighteen  hundred  and 

Clerk. 
Solicitor. 

Order  for  witness  to  show  cause  for  disobeying 
subpoena.(a) 

{Title  of  cause.) 

Upon  reading  and  filing  the  affidavit  of  ,  whereby  it 

appears  that  a  subpoena  ad  testificandum  was  duly  served  upon 


court,  for  the  purpose  of  giving  evi- 
dence in  a  cause  depending  in  the 
court,  a  subpcena  may  be  issued  by  the 
clerk,  upon  request  of  any  complain- 
ant or  defendant,  or  his  solicitor,  with 
a  blank  for  the  names  of  the  wit- 
nesses, to  be  filled  up  by  the  party 
procuring  the  same,  as  occasion  may 
require,  commanding  the  attendance 
of  the  witnesses  before  the  examiner 
therein  named,  at  the  time  and  place 
therein  expressed ;  and  the  names  of 
any  number  of  witnesses  may  be  in- 
serted in  the  same  subpoena.  Rule 
94.  The  subpcena  is  served  by  ex- 
hibiting to  the  witness  the  original 
writ,  under  the  seal  of  the  court,  de- 
livering to  him  a  copy,  and  paying  or 
tendering  to  him  the  fee  allowed  by 
law.  See  Haring  v.  Kauffman,  2  Beas. 
397 ;  Rev.,  "Evidence,"  §  13. 

(o)  If  any  person,  on  whom  lawful 
process  shall  have  been  duly  served  to 
testify,  depo.se  or  give  evidence  con- 


cerning any  cause  or  matter  pending 
in  any  court  of  this  state,  and  to  whom 
shall  have  been  paid  or  tendered,  at 
the  time  of  such  service,  fifty  cents, 
if  he  is  to  attend  in  the  county,  and 
one  dollar  if  he  is  to  attend  out  of  the 
county,  shall  not  appear  according  to 
the  command  of  said  process,  having 
no  lawful  or  reasonable  excuse  for 
such  default,  he  shall,  for  every  such 
offence,  forfeit  to  the  party  aggrieved, 
any  sum  not  exceeding  fifty  dollars,  to 
be  ascertained  and  adjudged  by  the 
court,  and  shall  also  pay  to  the  party 
damages,  &c.,  and  also  be  punishable 
as  for  a  contempt  of  the  court  out  of 
which  process  shall  issue.  Rev.,  "Evi- 
dence "  §  13 ;  Murray  v.  Elston,  8  C. 
E.  Gr.  212;  Ogden  v.  Gibbons,  2 
South.  *532;  State  v.  Trumbull,  1 
South.  *130.  As  to  the  penalty  for 
the  contempt,  see  Rev,  "Chancery," 
I  103. 


158  FORMS  OF   PLEADINGS. 

,  on  the  day  of  instant,  whereby  he  was 

required  to  appear  before  ,  one  of  the  examiners  of  this 

court,  on  the  day  of  ,  to  testify  on  the  part  of  the 

;  and  that  the  eaid  has  wholly  neglected  to  attend, 

as  therein  required :  It  is,  on,  &c.,  on  motion,  &c.,  ordered,  that 
the  said  show  cause  before  the  Chancellor,  at  the  state- 

house,  in  Trenton,  on  Tuesday,  the  day  of  next, 

why  an  attachment  should  not  issue  against  him,  dnd  he  be 
punished  for  his  alleged  misconduct  in  disobeying  such  subpn?na. 
And  it  is  further  ordered,  that  a  copy  of  said  affidavit  and  of 
this  order  be  served  on  the  said  ,  personally,  within 

days  from  the  date  hereof. 

Affidavit    for    examination    of    domestic    witness 
under  section  25.(«) 

( Title  of  cause.) 

State  of  New  Jersey,    I 

county  of  ,     J 

A  B,  the  complainant  in  said  cause,  being  duly  sworn,  deposes 
and  says,  that  E  F,  of  the  city  of  ,  in  this  state,  is  of  the 

(a)  If  any  material  witness  in  an  Any  material  witness  of  the  de- 
action  or  suit  of  a  civil  nature  in  any  scription  aforesaid  being  in  this  state 
of  the  courts  of  this  state  be  in  this  may  be  compelled  to  appear  and  be 
state,  but  is  ancient  or  very  infirm,  or  examined  before  any  of  the  said 
is  sick  or  is  about  to  go  out  of  this  officers,  in  the  same  manner  and 
state,  the  deposition  of  such  witness  under  the  same  penalties  as  if  sub- 
may,  at  the  option  of  either  party,  be  pcenaed  to  appear  and  testify  in  the 
taken  de  bene  esse  before  any  justice  of  court  wherein  the  said  action  is  pend- 
the  Supreme  Court,  or  judge  of  the  ing,  and  shall  be  allowed  compensa- 
Court  of  Common  Pleas,  or  Supreme  tiou  for  his  time  and  attendance  at  the 
Court  commissioner  or  master  in  same  rate  as  if  he  had  personally 
chancery ;  provided,  that  the  officer  appeared  and  given  testimony  in  the 
before  whom  the  deposition  is  to  be  cause  before  the  court  in  which  it  is 
taken  shall  cause  notice  to  be  given  to  pending.  Id.,  'i  26. 
the  adverse  party  immediately,  or  at  Every  person  deposing  as  aforesaid 
such  short  day  ai  the  case,  in  the  shall  be  sworn  or  affirmed  to  testify 
opinionof  the  said  officer,  may  require,  the  whole  truth,  and  shall  subscribe 
to  attend  and  be  present  at  the  taking  the  testimony  by  him  given  after  the 
thereof,  and  to  put  questions  and  same  shall  be  reduced  to  writing, 
cross-examine  if  he  shall  think  fit.  which  shall  be  done  only  by  the 
Jtev.,  "Evidence,"  I  25.  officer   taking   the   deposition   or   by 


DEPOSITIONS   BEFORE   EXAMINERS. 


159 


age  of  seventy  years  and  upwards,  and  is  very  infirm  {or  as  the 
case  may  be,)  and  is  a  material  witness  for  the  complainant  in 
the  above-entitled  cause. 

{Jurat)  {Signature.) 


Notice  of  examination  of  domestic  witness  under 
section  25. 

{Title  of  cause.) 

Sir — Take  notice,  that  the  deposition  of  E  F,  of  ,  will 

be  taken  de  bene  esse  before  the  subscriber,  one  of  the  masters  in 
chancery  of  the  State  of  New  Jersey,  pursuant  to  the  statute  in 
such  case  made  and  provided,  at  [place,)  on  {day  and  hour,)  at 
which  time  and  place  you  are  to  attend  and  be  present  at  the 
taking  thereof,  and  to  put  questions  and  cross-examine,  if  you 
shall  think  fit. 

{Signature  of  master.) 
To  ,  defendant. 


the  deponent  in  his  presence ;  and 
the  deposition  so  taken  shall  be 
retained  by  such  officer  until  he 
deliver  the  same,  together,  with  a 
certificate  of  the  reasons  of  its  being 
taken  and  of  the  notice,  if  any  was 
given,  to  the  adverse  party  with  his 
own  hand,  to  a  judge  or  the  clerk  of 
the  court  for  which  it  is  taken ;  or  the 
said  deposition  shall  be  by  the  said 
officer  sealed  up,  directed  and  trans- 
mitted, either  by  mail  or  private 
messenger,  to  such  judge  or  clerk, 
who  shall  open  and  immediately  file 
the  same  in  the  office  of  the  said 
clerk,  there  to  remain  as  aforesaid. 
Id.,  I  27. 

The  person  by  whom  such  depo- 
sition shall  be  transmitted  to  the  judge 
or  clerk  *  *  shall  make  oath  or 
affirmation  that  he  received  the  same 
sealed  up  from  the  hands  of  the  officer 
by  whom   it   was   taken,  designating 


the  time  and  place  when  and  where 
received,  and  that  the  same  has  not 
been  opened  or  altered  since  he  so 
received  it.    Id.,  \  28. 

A  notice  of  taking  a  deposition 
under  the  twenty-fifth  section  must  be 
served  on  the  party,  and  not  on  his 
solicitor  in  the  cause.  Arnold  v. 
Renshaw,  6  Halst.  *317. 

The  deposition  of  a  domestic  wit- 
ness can  only  be  taken  under  section 
25 ;  and  the  taking  of  depositions  by 
commission,  on  interrogatories  and 
cross-interrogatories,  is  only  permissi- 
ble where  the  witness  resides  out  of 
the  state,  and  the  deposition  may  be 
taken  during  the  trial  of  the  cause. 
Johnson  v.  Ai-nwine,  13  Vr.  460. 

A  certificate  of  the  master  that  the 
witness  was  duly  sworn  is  sufficient ; 
the  cautioning  need  not  appear  on  the 
face  of  the  depositions.  N.  J.  Express 
Co.  v.  Nichols,  3  Vr.  166. 


160  FORMS   OF   PLEADINGS. 

{Title  of  cause.) 
Deposition  of  E  F,  of,  &c.,  in  a  cause  depending  in  the  Court 
of  Chancery  of  the  State  of  New  Jersey,  wherein  is  com- 

plainant and  is  defendant,  taken  at  ,  on  the 

day  of  ,  &c.,  before  me,  ,  one  of  the  masters  of  the 

said  court,  in  the  presence  of  ,  of  counsel  with  the  com- 

plainant, and  of  ,  of  counsel  with  the  defendant,  pursuant 

to  the  statute  in  such  case  made  and  provided. 

{Signature  of  master.) 

E  F,  of,  &c.,  being  duly  sworn,  deposes  and  says — 
See  forms  of  oath  to  be  administered  to  witnesses. 
{Add  certificate  of  master.) 

Notice  of  taking  depositions  within  the  state.(a) 

{Title  of  cause.) 

Sir — Take  notice,  that  the  depositions  of  witnesses  will  be 
taken  in  this  cause,  on  behalf  of  the  ,  at  the  house  of 

(a)  When   any  cause  shall   be   at  mence  taking  testimony  on  his  part, 

issue,  and  the  interrogatories  exhibited  if  any  he  has,  and  shall  conclude  the 

to  the  complainant,  if  any,  answered,  same  in  thirty  days,  and  declare  when 

each  party,  the  complainant  first,  and  the    same    is    concluded.     Rule    81. 

then  the  defendant,  shall  proceed  to  When  issue  shall  be  joined  on  a  plea, 

take  and  complete  the  testimony  on  the  defendant  shall  begin  taking  testi- 

his  part  before  an  examiner,  by  ses-  mony,  and  the  same  shall  then  pro- 

sions  continued  from  day  to  day,  on  ceed  in   the  manner  above  directed ; 

ten  days'  notice  of  the  time  and  place  but   the   times   for   commencing   and 

of  commencing   the  same.     Rule  78.  taking  the  same  by  each  party  shall 

See,  as  to  notice,  Rev.,  "Chancery,"  I  be  one-third  of  the  times  prescribed 

45.   The  complainant  shall  commence  in   the   above  rules.     Rule  91.     The 

taking  testimony  on  his  part  within  examiner  may,  at  the  request  of  the 

fifteen   days   after    issue  joined,   and  party  taking  testimony,  adjourn  to  any 

shall  conclude  the  same  in  thirty  days,  day  within  said   thirty  days,  and   to 

and  declare  to  the  examiner  when  the  any  place  within  the  county  ;  and  any 

testimony  on   his   part  is   concluded.  examiner  may  take   such   testimony. 

Rule  80.     Within   fifteen   days   after  or  any  part  thereof,  in  place  of  the 

the  testimony  on  part  of  the  complain-  examiner  before  whom  the  same  was 

ant   is   declared   to  be   concluded,  or  noticed  or  commenced;  but  only  one 

after  the  time  for  taking  the  same  has  examination  shall  proceed  in  the  same 

expired,  if  no   such   declaration   has  cause   at   the   same   time,  except   on 

been  made,  the  defendant  shall  com-  commission  by  interrogatories.     Rule 


DEPOSITIONS   BEFORE   EXAMINERS. 


161 


,  in  ,  on  the  day  of  next,  at  the  hour 

of  ten  in  the  forenoon,  before  ,  one  of  the  masters  and 

examiners  in  the  Court  of  Chancery  of  New  Jersey. 
Dated,  &c.  Yours,  &c., 

{Signature  of  solicitor.) 
To  ,  Solicitor  of 

Examination  of  witnesses  within  the  state.(a) 
Examination  of  witnesses,  &c.,  in  a  cause  depending  in  the 
Court  of  Chancery  of  the  State  of  New  Jersey,  wherein 


82.  When  the  defendant  shall  declare 
the  testimony  on  his  part  closed,  or 
when  the  thirty  days  for  taking  testi- 
mony on  his  part  shall  have  expired, 
the  complainant  may  proceed  im- 
mediately, or  by  adjournment,  not 
exceeding  ten  days,  with  testimony  to 
rebut  the  testimony  of  the  defendant, 
or  to  sustain  testimony  on  his  part, 
impeached  or  contradicted  by  the  de- 
fendant, and  the  defendant  may  after- 
wards produce  counter-rebutting  evi- 
dence on  his  part ;  but  such  evidence 
shall  not  be  continued  for  more  than 
five  days  on  each  side.  Rule  83. 
The  examiner  may,  at  the  request  of 
either  party,  adjourn  the  examination 
to  a  day  within  the  time  limited  to 
said  party,  giving  precedence  to  the 
request  of  the  party  then  proceeding 
with  taking  testimony ;  and  when 
such  adjournment  is  regularly  made 
at  the  time  and  place  at  or  to  which 
an  examination  was  noticed  or  ad- 
journed, no  notice  of  the  same  need  be 
given.  Rule  84.  If  either  party  can- 
not complete  his  testimony  within 
such  thirty  days,  his  time  may  be 
enlarged  upon  motion,  on  notice 
served  before  the  expiration  of  said 
time,  for  reasons  verified  by  proof 
satisfactory  to  the  Chancellor.  Rule 
85.  The  time  for  taking  testimony 
above  limited  shall  not  be  extended. 


except  by  written  consent  or  by  order 
of  the  court,  made  upon  notice.  Rule 
8t).  No  legal  holiday,  except  Sunday, 
nor  any  day  between  the  fifteenth  day 
of  July  and  the  first  day  of  Septem- 
ber, unless  occupied  in  taking  testi- 
mony, shall  be  computed  as  part  of 
said  limited  time.  Rule  87.  Deposi- 
tions, except  when  taken  ex  parte, 
shall  be  taken  before  an  examiner  to 
be  agreed  upon  by  the  solicitors  of  the 
parties  to  the  issue.  If  they  are 
unable  to  agree  thereon,  the  examiner 
shall  be  named  by  the  Chancellor,  on 
motion  to  be  made  on  a  regular 
motion-day.  Rule  21] .  The  examiner 
does  not  require  proof  of  the  service 
of  the  notice  before  commencing  the 
examination,  but  allows  the  party  to 
proceed,  at  the  peril  of  having  the 
depositions  suppressed,  upon  the  ap- 
plication of  the  opposite  party,  if 
notice  has  not  been  given.  1  Barb. 
Ch.  Pr.  *279. 

(a)  All  examinations  of  witnesses, 
to  be  taken  and  made  use  of  at  the 
hearing  of  any  cause  in  the  Court  of 
Chancery,  except  such  as  shall  be 
taken  before  a  Vice  Chancellor,  (or 
an  advisory  master,)  shall  be  taken 
and  reduced  to  writing  by  one  of  the 
examiners  of  the  court,  or  before  a 
commissioner  appointed  by  the  Chan- 
cellor, according  to  the  course  of  the 


162 


FORMS   OF   PLEADINGS. 


is   complainant,  and  is   defendant,  taken   at  , 

in  the  city  of  ,  on  ,  the  day  of  ,  in 

the  year  of  our  Lord,  &c.,  before  ,  one  of  the  masters 


court.  The  rules  permit  the  taking 
of  testimony  before  an  examiner  by 
means  of  a  stenographer  when  the 
parties  agree  to  such  course,  and  the 
legal  fees  are  to  be  divided  between 
the  examiner  and  stenographer  in  the 
proportion  of  one-third  to  the  former 
and  two-thirds  to  the  latter.  Mule 
110.  When  oral  examinations  are 
had  before  a  Vice  Chancellor  by 
means  of  a  stenographer,  the  expense 
thereof  is  borne  by  the  state.  Bev. 
Sup.,  "  Chancery,"  |  20. 

Either  of  the  parties  may,  either  in 
person  or  by  their  solicitors  or  coun- 
sel, be  present,  and  examine  and 
cross-examine  the  witnesses.  Mev., 
"  Chancery,"  §  45.  A  witness  should 
not  be  allowed  to  have  his  direct  tes- 
timony read  to  him  before  cross- 
examination.  Such  irregularity  is 
not  sufficient  to  suppress  the  testi- 
mony, but  must  almost  destroy  his 
credibility.  Derby  v.  Derby,  6  C.  E. 
Or.  36.  A  party  before  a  master 
cannot  be  cross-examined  generally. 
He  cannot  make  evidence  for  himself 
by  the  introduction  of  facts  or  matters 
not  the  subject  of  inquiry  or  original 
examination.  He  can  only  be  called 
on  to  explain  or  to  make  such  state- 
ments as  may  prevent  misunderstand- 
ing or  rebut  any  unfair  inference  that 
may  arise  from  the  answer.  Jackson 
V.  Jackson,  2  Or.  Ch.  96.  The  com- 
plainant or  petitioner  in  any  action  or 
proceeding  ,of  an  equitable  nature,  is 
a  competent  witness  to  disprove  so 
much  of  the  defendant's  answer  as 
may  be  responsive  to  the  allegations 
contained  in  the  bill  or  petition. 
Bev.,  '^Evidence,"  §  6.  All  depositions 
of  witnesses  before  examiners  shall  be 
taken  in  the  first  person,  as  spoken  by 


the  witness,  and,  as  near  as  practica- 
ble, in  the  words  of  the  witness  ;  and 
such  depositions  shall  be  taken  down 
in  the  narrative  form,  and  not  by 
entering  both  question  and  answer, 
except  in  cases  where  the  examiner 
shall,  from  the  subject-matter  or  the 
manner  of  the  witness,  determine  that, 
in  his  opinion,  it  is  necessary  for  the 
correct  understanding  of  the  evidence, 
or  of  the  disposition  of  the  witness,  to 
take  down  both  question  and  answer ; 
and  in  such  case,  the  examiner  shall 
enter  on  his  minutes  and  sign  his  de- 
termination to  that  effect,  provided 
that  in  litigated  cases  the  testimony 
may,  by  consent  of  the  parties,  be 
taken  by  a  stenographer,  question  and 
answer,  and  afterwards  written  out  in 
full.  Bule  90.  The  exhibits  offered 
in  any  cause,  except  books  of  account 
in  actual  use,  shall,  upon  request, 
be  left  with  the  examiner  for  such 
reasonable  time  as  he  may  prescribe, 
that  the  same  may  be  examined 
by  other  parties,  and  copies  made 
by  the  examiner,  unless  the  party 
producing  them  will  furnish  such 
copies ;  and  then  they  may  be  in- 
spected, as  directed  by  the  examiner, 
in  the  presence  and  custody  of  the 
party  producing  them ;  and  there 
shall  be  paid  for  such  copies,  when 
made  by  the  master,  ten  cents  per 
folio,  and  when  made  by  the  party, 
four  cents  per  folio,  which  shall  be 
allowed  and  taxed  as  costs  in  the 
cause.  Bule  89.  The  examiner  shall 
number  each  page  of  the  examina- 
tion taken  by  him,  and  also  every 
tenth  line  of  the  same,  leaving  suffi- 
cient margin  for  the  purpose ;  and 
where  more  than  one  witness  is  ex- 
amined, he  shall   annex   a  separate 


DEPOSITIONS   BEFORE   EXAMINERS. 


163 


and   examiners  of  the  said   court,  in   the   presence  of  , 

solicitor  and   of  counsel   with   the  said   complainant,  and  of 

,  solicitor  and  of  counsel  with  the  said  defendant. 


leaf  to  the  examination,  containing  a 
list  of  the  names  of  the  witnesses, 
and  a  reference  to  the  jjages  on  which 
their  examination  respectively  com- 
mences ;  and  no  costs  shall  be  taxed 
for  any  examination  where  this  rule 
has  not  been  strictly  complied  with. 
Mule  92.  The  first  thing  to  be  done 
by  the  examiner  is  to  administer  the 
oath  to  the  witness.  The  form  of  the 
oath  is  as  follows — the  witness  laying 
his  hand  on  and  kissing  the  Book  of 
the  Gospels :  "  You  do  swear,  that  the 
evidence  given  by  you  upon  the 
examination  in  this  cause,  pending  in 
the  Court  of  Chancery  of  the  State  of 
New   Jersey,   wherein  is   com- 

plainant, and  is  defendant,  shall 

be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  so  help  you 
Ood."  Or,  if  the  witness  desire  it  : 
"You  do  swear,  by  the  ever-living 
Ood,"  &c.  While  taking  this  oath, 
the  witness  must  hold  up  his  hand, 
instead  of  touching  and  kissing  the 
Book  of  the  Gospels.  Mev.,  "Oaths  of 
Public  Offi^cers,"  U  22,  23.  For  forms 
of  afl5rmation,  see  Id.,  ^  26  ;  also  page 
152,  ante.  The  only  causes  which  go 
to  the  capacity  of  a  witness,  are  the 
want  of  discretion,  as  in  the  case  of 
infants;  the  want  of  intellectual 
powers,  as  in  the  case  of  idiots,  luna- 
tics and  madmen,  and  the  want  of 
religious  principle  and  belief,  as  in 
the  case  of  those  who  do  not  believe 
in  the  being,  perfection  and  provi- 
dence of  God,  nor  in  the  future  state 
of  rewards  and  punishments.  Den  v. 
Vandeve,  2  South.  589,  653 ;  Donnelly 
V.  State,  2  Dutch.  601,  620;  and  see 
Miller  V.  Miller,  1  Gr.  Ch.  139.  The 
deposition  of  a  witness  must  be  signed 
by  the  witness ;  if  not  signed,  it  is  im- 


perfect, and  cannot  be  read  at  the 
hearing.  Flavell  v.  Flavell,  5  C.  E. 
Ch'.  211;  7  a  E.  Gr.  599;  Vander- 
haise  v.  Hughes,  2  Beas.  412.  And 
the  master  should  also  annex  a  jurat 
properly  signed  to  each  one.  Ibid. 
If  he  should  die  after  his  examination 
is  completed,  but  before  it  is  signed, 
the  deposition  cannot  be  used.  Cope- 
land  v.  Stanton,  1  P.  Wms.  414.  It  is 
the  duty  of  the  examiners  in  chancery 
to  transmit,  without  any  unnecessary 
delay,  all  depositions  and  examina- 
tions of  witnesses  by  them  taken  in 
any  cause  pending  in  the  court,  to  the 
clerk,  to  be  filed ;  and  all  depositions 
and  examinations  of  witnesses  taken 
in  a  cause  by  an  examiner  must  be 
filed  in  the  clerk's  office  within  ten 
days  after  the  examination  of  wit- 
nesses in  the  cause  shall  be  closed; 
and  no  examination  will  be  filed  after 
the  expiration  of  the  said  ten  days, 
without  an  order  of  the  Chancellor 
directing  the  filing  thereof  Rule  93. 
Examiners  are  not  authorized  to  retain 
depositions  for  non-payment  of  their 
fees.  Application  should  be  made  to 
the  court  for  relief  in  such  cases. 

It  shall  be  the  duty  of  the  examiner 
before  whom  testimony  is  taken  to 
decide  upon  all  objections  to  evidence, 
and  his  decisions  shall  be  final  unless 
reversed  on  appeal  to  the  Chancellor, 
which  is  to  be  taken  as  hereinafter 
provided.  Though  appeal  be  taken 
the  examination  shall  nevertheless 
proceed,  but  in  conformity  with  tlie 
ruling.  Notice  of  appeal  must  be  given 
and  entered  on  the  record  immedi- 
ately upon  the  making  of  the  decision 
of  the  examiner,  otherwise  the  right 
of  appeal  will  be  considered  as  waived. 
The  notice  will  be  merely  oral.     If 


164 


FORMS   OF   PLEADINGS. 


,  of  the  township  of  ,  in  the  county  of  ,  a 

witness  produced  on  the  part  of  the  aforesaid  complainant,  being 
duly  sworn,  deposes  and  says,  &c. 


there  be  notice  of  appeal,  the  objec- 
tion and  the  ground  of  it  and  the 
examiner's  decision  thereon  must, 
with  a  memorandum  of  the  fact  of  the 
appeal,  be  entered  on  the  record  of 
the  evidence  at  the  place  in  the 
record  where  they  occur.  The  entry 
will  be  in  brief  form,  as  follows,  for 
example : 

"Defendant  objects  to  the  evidence, 
on  the  ground  that  it  is  irrelevant  to 
the  issue.     Objection  ovelruled.     Ap- 
peal. 
"A.  B.,  Examiner.     Nov.  10th,  1883." 

The  appeal  shall  be  heard,  without 
further  notice,  on  the  next  regular 
motion-day,  at  the  chancery  cham- 
bers, (the  State-house  being  deemed 
for  this  purpose  a  chancery  chamber,) 
nearest  the  place  where  the  testimony 
was  being  taken  at  the  time  of  the 
appeal,  if  three  days  intervene  be- 
tween the  time  of  making  the  decision 
and  that  day,  but  if  not,  then  on  the 
next  motion-day  thereafter.  If  the 
appellant  shall  not  bring  on  the 
appeal  at  the  time  fixed,  he  shall  pay 
costs  of  the  notice,  unless  he  give  at 
least  one  day's  notice  to  the  solicitor 
or  solicitors  of  the  other  party  or 
parties  to  the  issue  that  he  has 
abandoned  the  appeal.  Depositions, 
except  when  taken  ex  'parte,  shall  be 
taken  before  an  examiner  to  be  agreed 
upon  by  the  solicitors  of  the  parties 
to  the  issue.  If  they  are  unable  to 
agree  thereon,  the  examiner  shall  be 
named  by  the  Chancellor  on  motion 
to  be  made  on  a  regular  motion-day. 
Bule  211. 

Under  the  provisions  of  rule  211, 
the  examiner  may  reject  an  incom- 
petent witness.  Demarest  v.  Vanden- 
burg,  12  Stew.  Eq.  130.     A  party  fail- 


ing to  object  waives  his  right  to 
exclude  evidence,  but  the  court,  on  its- 
own  motion,  may  throw  out  the  evi- 
dence of  an  imcompetent  witness. 
Manfort  v.  Rowland,  11  Stew.  Eq.  181. 
Quaere — As  to  the  legality  of  the 
rule  of  court  authorizing  the  master 
to  reject  testimony.  Rice  v.  Rice,  2 
Dick.  Oh.  Rep.  559. 

Examination  of  ■vritnesses  before 
a  Vice  Chancellor  or  an  advisory- 
master.  At  the  time  noticed  or 
designated  for  hearing,  both  parties 
shall  attend  with  their  witnesses  and 
other  evidence,  and  the  cause  shall 
proceed  as  at  a  trial  at  law  before  a 
jury,  by  the  oral  examination  of  the 
witnesses  on  both  sides  continuously 
until  all  the  evidence  has  been  pro- 
duced and  closed ;  the  party  holding 
the  affirmative  first  producing  all  his 
evidence,  and,  after  resting,  he  shall 
be  permitted  to  produce  evidence  in 
rebuttal  only  ;  but  the  Vice  Chancellor 
may,  in  his  discretion,  under  restric- 
tions mentioned  in  the  rule,  reserve  ta 
either  party  the  right  to  produce  one 
or  more  witnesses,  who  shall  be  named, 
to  be  examined  orally  or  by  deposition 
at  a  future  day.  But  such  right  shall 
not  be  granted  unless  the  Vice  Chan- 
cellor be  satisfied  that  due  diligence 
has  been  used  to  procure  the  attend- 
ance or  deposition  of  such  witness 
before  the  trial,  nor  unless  it  be  fairly 
disclosed  what  is  expected  to  be 
proved  by  such  witness,  and  such  evi- 
dence shall  appear  to  be  material, 
and  shall  not  be  admitted  by  the 
other  party  or  parties.  Rule  196. 
When  a  stenographer  appointed  by 
the  Vice  Chancellor  shall  attend  to 
take  down  the  testimony,  the  exami- 
nation  shall    proceed   as   rapidly   as 


DEPOSITIONS   BEFOEE   EXAMINERS.  165 

Notice  of  using  documentary  paper  at  the  hear- 
ing.(a) 

{Title  of  cause.) 

Take  notice,  that  I  shall  use,  at  the  hearing  of  this  cause,  as 
evidence  on  the  part  of  the  complainant,  {or  "  defendant,")  an 
answer  of  the  defendant,  ,  filed  by  him  to  the  bill  of 

complaint  of  in  this  court,  which  answer  purports  to  have 

been  sworn  to  on  the  day  of  ,  before  ,  a  master 

of  this  court,  (or  as  the  case  may  be,  specifying  the  record  or 
paper  to  be  used.) 

{Signature  of  solicitor.) 

To  ,  Solicitor  of 

Affidavit,  in  a  cause  before  the*  Vice  Chancellor, 
whereon  to  ground  the  taking  of  depositions  before 
an  examiner. (6) 

{Title  of  cause.) 
State  of  ,   1 

(■SS. 

county  of  ,  J 

,  the  complainant  in  this  cause,  being  duly  sworn, 
deposes  and  says — that  ,  of  ,  is  of  the  age  of 

counsel  can  ask,  and  the  witness  notice  given  before  the  testimony  of 
answer,  the  questions.  The  examining  the  party  giving  it  is  closed.  Rule  95. 
counsel  shall  not  take  notes,  nor  shall  (6)  Either  party,  after  a  cause  is  at 
the  examination  be  delayed  in  order  issue,  may,  upon  filing  an  afiidavit 
that  any  counsel  or  other  person,  that  a  material  witness  is  very  old, 
except  the  reporter,  may  take  minutes  infirm,  or  about  to  leave  the  state, 
of  the  testimony.  But  every  effort  and  that  he  is  in  danger  by  reason 
shall  be  made  by  the  court  and  coun-  thereof  of  losing  the  benefit  of  his 
sel  to  expedite  the  cause,  so  far  as  testimony,  take  the  deposition  of  such 
may  be  consistent  with  a  full  and  fair  witness  before  any  examiner,  upon 
hearing  thereof.  Rule  197.  The  like  notice  and  in  like  manner  as 
competency  of  evidence  shall  be  de-  such  evidence  has  heretofore  been 
termined  by  .the  Vice  Chancellor,  taken;  and  such  deposition  shall  be 
who,  upon  the  objection  of  either  filed  with  the  clerk  in  chancery,  by 
party  or  of  his  own  motion,  shall  the  examiner  before  whom  it  was 
exclude  evidence  that  may  be  illegal  taken,  within  six  days  after  it  is  Con- 
or irrelevant.  Rule  198.  eluded,  and  may  be  read  as  evidence, 
(a)  No  documentary  evidence,  which  subject  to  all  exceptions,  at  the  hear- 
is  not  made  an  exhibit  before  the  ing  of  the  cause,  unless  some  party  to 
master,  shall  be  read  at  the  hearing  the  cause  shall  produce  such  witness 
of  the  cause,  except  records  or  files  of  at  tlie  hearing,  in  which  case  he  shall 
the  court,  which  may  be  read,  upon  be  examined  orally.     Rule  200. 


166  FORMS   OF   PLEADINGS. 

and  upwards,  {or,  "  is  dangerously  ill,  and  is  not  expected  to 
recover,"  or,  "  is  very  infirm,"  or,  "  is  about  to  leave  the  state, 
and  that  he  is  in  danger  by  reason  thereof  of  losing  the  benefit 
of  his  testimony,  and  that  he  is  a  material  witness  for  this 
deponent  in  the  above-entitled  cause.") 

(Jurat.)  (Signature.) 

Notice  of  motion  to  extend  the  time  for  taking 

testimony.(a) 

[Title  of  cause.) 

As  in  form  on  page  148  to  *,  then,  "  for  an  order  to  extend 
the  time  for  taking  testimony  on  the  part  of  the  complainant " 
or  "  defendant.") 

Order  extending  the  time  for  examining  witnesses 

under  the  rules. 

(Title  of  cause.) 

On  opening  the  matter  to  the  Chancellor  this  day,  by  , 

of  counsel  with  the  ,  and  on  read'.ng  the  affidavit  of 

,  by  which  it  appears,  to  the  satisfaction  of  the  Chan- 
cellor, that  the  said  requires  more  time  for  the  production 
of  the  testimony  than  is  allowed  by  the  rules :  It  is,  on  this, 
&c.,  ordered,  that  the  said  have  days  further  time 
from  and  after  the  expiration  of  the  time  limited  by  the  rule  to 
take  his  testimony-in- chief  {or  "in  rebuttal,"  if  order  obtained 
by  complainant^  in  this  cause. 

Order  extending  time  for  taking  testimony,  where 
parties  are  proceeding  not  under  the  rule. 

{Title  of  cause.) 
Upon  opening  the  matter  this  day  to  the  Chancellor,  by  , 

of  counsel  with  the  ,  and  upon  reading  the  affidavit(6)  of 

(a)  If  either  party  cannot  complete  before  the  expiration  of  such  time, 
his  testimony  within  the  time  limited  for  reasons,  verified  by  proof,  satis- 
by  the  eightieth,  eighty-first  and  factory  to  the  Chancellor.  Rules  85,  86. 
eighty-third  rules,  his  time  may  be  {h)  A  copy  of  every  aflidavit  in- 
enlarged,  by  written  consent  of  the  tended  to  be  used  on  the  argument  of 
adverse  party,  or  by  order  of  the  any  special  motion,  or  of  any  other 
court,  upon  motion,  on  notice  served  special   matter    before  the  court,   of 


DEPOSITIONS   BEFORE   EXAMINERS. 


167 


,  the  ,  whereby  it  appears  that  the  examination  of 

certain  witnesses,  alleged  to  be  necessary  and  material  on  the 
part  of  the  said  defendant  in  said  cause,  could  not  be  had  and 
taken  within  the  time  limited  by  the  rule  to  close  the  examina- 
tion of  witnesses  in  the  above  cause,  on  the  day  of 
last,  and  the  said  praying  that  the  time  may  be  enlarged 
and  extended :  It  is  thereupon,  on  this  day  of  ,  in 
the  year,  &c.,  ordered,  that  days  from  the  date  hereof  be 
allowed  for  the  examination  of  witnesses  in  said  cause. 

Order  to  close  testimony.(a) 

{Title  of  cause.) 
Upon  opening  the  matter  to  the  court,  &c.,  and  on  good  cause 
shown  :    It  is,  on  this,  &c.,  on  motion,  &c.,  ordered,  that  the 
examination  of  witnesses  on  the  part  of  the  complainant  [or 
"  defendant ")  be  closed  in  days  from  and  after  the  date 

of  the  service  of  this  order  upon  the  said  or  his  solicitor. 


which  notice  shall  be  necessary,  shall 
be  served  on  the  adverse  party  at 
least  four  days  before  the  day  of 
argument,  or  shall  be  taken  on  two 
days'  notice,  at  least,  of  the  time  and 
place  of  taking  the  same;  and  all 
aflSdavits  made  use  of  in  court  shall 
be  first  filed  with  the  clerk ;  and 
no  writ,  order  or  other  proceeding, 
grounded  upon  an  affidavit  or  affi- 
davits, shall  be  issued,  filed  or  entered 
by  the  clerk,  unless  the  affidavit  or 
affidavits  upon  which  it  shall  be 
grounded  shall  have  been  previously 
filed.  Rule  138.  Affidavits,  upon 
which  are  founded  applications  to 
extend  the  time  of  taking  testimony, 
shall  be  served  for  three  days ;  but 
counter-affidavits  may  be  read  without 
notice.     Rule  140. 

(a)  When  either  party  has  neglected 
to  observe  strictly  the  directions  of 
the  rules  for  taking  and  closing  his 
testimony,  and  desires  to  be  relieved 
from  the  efiect  of  his  laches,  he  must 


obtain  and  serve  upon  the  adverse 
party  an  order  to  close  his  testimony 
within  a  limited  lime.  The  order  is 
usually  granted  ex  parte,  on  the  repre- 
sentations of  counsel.  If  the  terms  of 
the  order  are  not  complied  with,  the 
party  obtaining  it  will  then  be  in  a 
position  to  hasten  the  progress  of  the 
suit  in  accordance  with  the  rules  and 
practice  of  the  court. 

The  court  may  relieve  a  party  who 
has  not  punctually  complied  with  its 
own  rules.  Hillyer  v.  Schenck,  2  Mc- 
Cart.  399.  Formerly,  by  a  rule  of  this 
court,  after  issue  joined,  either  party 
might  enter  of  course,  with  the  clerk, 
a  rule  that  the  examination  of  wit- 
nesses be  closed  in  fifty  days,  a  copy 
of  which  rule  was  to  be  served  on  the 
opposite  party  within  eight  days  after 
the  entry  thereof;  and  within  the  time 
so  limited  by  the  rule,  the  examina- 
tion of  witnesses  to  be  closed,  unless 
the  time  should  be  enlarged  by  con- 
sent, or  the  Chancellor,  upon  petition 


168 


FORMS   OF    PLEADINGS. 


Order  for  re- examination  of  a  witness.(a) 

« 

{Title  of  cause.) 

This  matter  being  opened  to  the  court,  &c,,  and  it  appearing 
bj  affidavit  (or  otherwise),  to  the  satisfaction  of  the  court,  that 
the  re-examination  of  ,  a  witness  in  this  cause  on  the  part 

of  the  complainant  {or  "  defendant,")  is  necessary  :  It  is,  on  this, 
<fec.,  on  motion  as  aforesaid,  ordered,  that  the  have  leave 

to  re-examine  the  said  witness,  on  due  notice  to  the  solicitor  of 
,  the  adverse  party,  {or  as  the  ease  may  be.) 


or  motion,  and  sufficient  cause  shown, 
should  give  further  time  for  closing 
the  examination  ;  but  an  ex  parte  order 
could  not  be  granted  after  the  time 
had  expired,  nor  could  a  second  order 
be  granted  to  the  same  party,  except 
on  two  days'  notice  to  the  opposite 
party,  and  upon  terms;  but  the 
seventy-eighth,  eightieth  and  eighty- 
first  rules  were,  in  1806,  substituted 
for  this  practice. 

Every  cause  must  be  noticed  for 
hearing  at  the  next  term  after  the 
evidence  therein  is  closed,  provided 
there  shall  be  sufficient  time  to  notice 
it  at  or  in  such  term ;  and  no  cause 
can  be  set  down  for  hearing  on  any 
day  in  term  after  the  twentieth  day. 
Rule  10 ;   and  see  Rev.,  "  Chancery," 

(a)  To  examine  a  witness  more  than 
once,  without  leave,  is  opposed  to  the 
policy  and  practice  of  the  court.  See 
Delany  v.  Noble,  2  Gr.  Ch.  441; 
Crawford  v.  Bertholf,  Sax.  458.  If  a 
witness  has  been  re-examined  without 
an  order,  the  court  will  reject  the 
second  examination.  Hanson  v.  Trus- 
tees, &c.,  3  Stock.  441.  But  if  the 
opposite  party  do  not  object  to  evi- 
dence thus  taken,  it  does  not  lie 
in  the  mouth  of  the  party  offering 
it  to  call  it  in  question.  Delany  v. 
Noble,  supra.  It  is  in  the  discretion 
of  the  court  whether  it  will  permit  a 


witness  to  be  recalled,  and  it  is  not 
necessary  that  the  opposite  side  should 
consent.  2' Dan.  C^.  P/-.  1104.  The 
eighty-fourth  rule  of  the  chancery 
rules  of  New  York  provided  that  a 
witness  once  examined,  either  before 
an  examiner  or  commissioners,  should 
not  be  again  examined,  either  to  the 
same  or  different  facts,  unless  by  the 
consent  of  the  opposite  party,  or  by 
order  of  the  court,  on  sufficient  cause 
shown  by  affidavit  or  otherwise,  accord- 
ing to  circumstances.  An  express 
rule,  in  the  same  words,  existed  in 
this  state  at  the  time  of  the  decision 
in  Delany  v.  Noble,  supra.  In  this 
state  the  order  is  generally  granted 
ex  parte,  but  an  application  for  a 
second  examination  should  be  on 
notice. 

A  witness  cannot,  without  leave  of 
the  court,  be  re-examined  on  a  matter 
as  to  which  he  has  been  previously 
examined ;  but  this  ground  of  objec- 
tion must  be  specifically  stated  when 
he  is  recalled  or  his  testimony  will 
not  be  excluded.  The  rule,  however, 
does  not  prevent  the  recalling  of 
a  witness  in  rebuttal.  Osborne  v. 
O'Reilly,  7  Stew.  Eq.  60. 

In  all  cases,  the  re-examination  of  a 
witness  is  regularly  to  follow  imme- 
diately upon  his  cross-examination. 
Dan.  Ch.  Pr.  919,  981.  On  an  appli- 
cation for  leave  to  re-examine  a  wit- 


DEPOSITIONS   BEFORE   EXAMINERS. 


169 


Notice  of  motion  to  suppress  deposition,  (a) 

{Title  of  cause.) 
Take  notice,  {as  on  page  148  to  **,  then,  "the  deposition  of 
,  a  witness  examined  in  this  cause  on  the  part  of  the 
,  before  ,  one  of  the  examiners  of  this  court,"  or, 

*'  a  commissioner  duly  appointed  by  this  court  to  take  the  exami- 
nation of  witnesses  in  this  cause,")  on  the  day  of 
last,  be  suppressed. 

Order  suppressing  deposition. (6) 

{Title  of  cause.) 
This  matter  coming  on  to  be  heard,  &c.,  *  and  on  reading  and 
filing  notice  of  motion  and  affidavits  in  support  thereof  and  in 


ness  whose  testimony  had  been  given 
to  correct  a  mistake  involving  the 
direct  contradiction  of  a  material  fact, 
leave  was  granted,  with  a  direction  in 
the  order  that  the  examiner  should 
certify  specially  as  to  the  circum- 
stances. Byrne  v.  Frere,  1  Mol.  396. 
A  party  will  not  be  allowed  to  re-ex- 
amine a  witness  whose  memory  has 
been  refreshed  since  his  examination 
closed,  except  as  to  documentary  evi- 
dence. Noel  v.  Fitzgerald,  1  Hogan 
135.  There  is  no  universal  and  abso- 
lute rule  which  prohibits  the  court 
from  allowing  the  introduction  of 
newly-discovered  evidence  of  witnesses 
to  facts  in  issue  in  the  cause,  after 
publication  and  knowledge  of  the 
former  testimony,  and  even  after  the 
hearing.  But  the  allowance  of  it  is 
not  a  matter  of  right  in  the  party,  but 
of  sound  discretion  in  the  court,  to  be 
exercised  cautiously  and  sparingly, 
and  only  under  circumstances  which 
demonstrate  it  to  be  indispensable  to 
the  merits  of  the  case.  Mulock  v. 
Mulock,  1  Stew.  Eq.  15;  see  Gray  v. 
Murray,  4  Johns.  Ch.  412;  Newman  v. 
Kendall,  2  A.  K.  Marsh.  230. 


(a)  In  case  notice  has  been  given  to 
suppress  depositions  at  the  hearing,  it 
is  usual  to  bring  it  on  before  entering 
upon  the  hearing  of  the  cause.  The 
court  may  either  decide  the  question 
at  once,  as  to  the  admissibility  of  the 
depositions,  or  may  allow  them  to  be 
read  de  bene  esse,  reserving  the  ques- 
tion until  the  final  disposition  of  the 
cause.  1  Barb.  Ch.  Fr.  *317.'  De- 
positions, when  objected  to  as  taken 
upon  leading  interrogatories,  or  as 
scandalous,  or  for  some  irregularity  in 
relation  to  them,  are  suppressed  prior 
to  the  hearing;  and  the  question 
whether  the  depositions  shall  be  sup- 
pressed is  a  matter  of  discretion. 
Brorvn  v.  Buckley,  1  McCart.  294. 
Depositions  taken  in  another  state, 
on  behalf  of  complainant,  before  a 
commissioner,  were,  on  notice,  sup- 
pressed for  reasons  stated  in  the 
opinion.  See  Fulton  v.  Golden,  1  Stew. 
Eg.  37. 

(6)  The  court  will  suppress  the  de- 
position of  a  witness  who,  after  his 
direct  examination,  secretes  himself 
so  that  he  cannot  be  cross-examined. 
Flavell  V.  Flavell,  5  0.  E.  Gr.  211 ;  7 


170  FORMS   OF   PLEADINGS. 

opposition  thereto,  {or,  after  *,  "  on  an  order  to  show  cause, 
heretofore  granted  herein,")  and  on  motion  of  ,  of  counsel 

with  the  :  It  is,  on  this,  &c.,  on  motion,  &c.,  ordered  that 

the  deposition  of  ,  taken  before  ,*  one  of  the  exami- 

ners of  this  court,  [or,  after  *,  "  under  a  commission  issued  in 
this  cause,")  be  and  the  same  is  hereby  suppressed,  with  costs, 
and  is  declared  inadmissible  as  evidence  in  this  cause. 

Order  for  proofs  ex  parte.(a) 

{Title  of  cause.) 

Upon  opening  the  matter  to  the  court,  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  to  the  Chancellor  that 
notice  of  the  order  made  in   this  cause,  on   the  day  of 

last  past,  directing  the  defendant  to  appear,  plead,  answer 
or  demur  to  the  complainant's  bill  on  or  before  the  day 

of  then  next,  has  been  duly  published  and   mailed,  {or 

"  served,")  as  in  and  by  said  order  was  directed,  and  that  the 
said  defendant  has  not  appeared  and  pleaded,  answered  or 
demurred  to  the  same  within  the  time  limited  by  said  order,  or 
at  any  other  time :    It  is,  on  this  day  of  ,  in  the 

year,  &c.,  ordered,  that  the  bill  of  complaint  be  taken  as  con- 
fessed against  the  defendant,  and  it  is  further  ordered  that  the 
complainant  proceed  to  take  depositions  and  other  evidence  to 
substantiate  and  prove  the  allegations  in  his  said  bill,  and  to 
bring  on  the  hearing  of  the  cause  ex  parte. 

C.  E.  Gr.  599.    No  notice  having  been  prove  the  allegations  in  his  bill,  the 

given  of  the  time  and  place  of  taking  proceedings   subsequent    to   the   said 

depositions,  under  Rev.,  "Evidence,"  §  order  may  be  considered  as  ex  parte, 

38,  they  w§re  suppressed.     Parker  v.  and  it  will  not  be  necessary  for  the 

Hayes,  8  C.  E.  Gr.  186.  complainant  to  give  notice  thereof  to 

(a)  In  cases  where  the  court  shall  the  defendant.     Bule  26.     See  part  of 

order    the    complainant    to    produce  note  (a),  page  35,  ante,  for  practice  in 

documents   and   depositions,   exhibits  certain  cases  of  creditors'  bills. 
or  other  evidence,  to  substantiate  and 


HEARING. 


171 


HEARING.(a) 

Rule  for  hearing. 

{Title  of  cause.)  >  {Date.) 

It  is  ordered,  on  motion  of  ,  solicitor  for  and  of  couEsel 

with  the  complainant,  that  this  cause  be  set  down  for  hearing 
on  the  first  day  of  the  next  stated  term  of  this  court,  to  be  held 


(a)  Every  cause  must  be  set  down 
for  hearing  at  the  next  stated  term 
after  the  filing  of  the  replication,  pro- 
vidfd  there  be  fifteen  days  between 
filing  the  replication  and  the  next 
stated  teim ;  and  if  there  be  not,  then 
the  hearing  shall  be  had  at  the  next 
subsequent  stated  term.  Mev.,  "  Chan- 
cery," §  47.  If  the  complainant  shall 
not  attend  at  the  time  appointed  for 
the  hearing,  the  pleadings  and  proofs 
shall  be  read  on  the  part  of  the  de- 
fendant, and  the  court  thereupon  may 
decree  in  favor  of  the  defendant  or 
complainant,  as  the  case  may  require, 
or  may  dismiss  complainant's  bill, 
with  costs.  Bev.  Sup.,  "Chancery," 
§  3.  If  a  complainant  do  not  file 
exceptions  to  the  answer  or  a  replica- 
tion, he  must  set  the  cause  down  for 
hearing  upon  bill  and  answer,  within 
thirty  days  after  the  expiration  of  the 
time  limited  or  granted  for  filing  the 
answer.  Mev.,  "Chancery,"  §  33.  All 
causes,  including  pleas  and  demurrers, 
shall  be  set  down  for  hearing  for  the 
first  day  of  the  term,  provided  there 
is  time  sufiicient  to  give  the  notice 
required  ;  if  not  time,  then  at  a  subse- 
quent day  in  the  term,  not  later  than 
the  twentieth  day,  and  shall  have 
priority  according  to  the  date  of  issue ; 
and  the  party  setting  down  a  cause  for 
hearing,  or  his  solicitor,  shall,  at  least 
six  days  before  the  first  day  of  the 
term  for  which  the  cause  is  noticed, 


furnish  the  clerk  with  a  note  of  the 
time  issue  was  joined,  which  shall  be 
entered  on  the  calendar;  and  in  de- 
fault thereof,  the  cause  set  down  with- 
out such  note  shall  lose  its  priority. 
Rule  3.  But  no  day  will  be  assigned 
by  the  court  for  the  final  hearing  of 
any  cause  on  the  list  until  after  the 
evidence  shall  have  been  closed,  unless 
the  cause  be  set  down  for  hearing  on 
bill  and  answer.  Rule  2.  Where  the 
complainant  has  taken  issue  upon  a 
plea,  by  filing  a  replication  thereto, 
either  party  may  enter  the  plea  for 
argument  at  the  next  or  any  subse- 
quent term.  Rule  13.  No  decree  in 
an  ex  parte  divorce  case  shall  be 
signed  until  after  the  master's  report 
shall  have  been  on  file  thirty  days. 
Rule  165.  A  motion  to  strike  out  an 
insufiicient  plea  is  not  correct  prac- 
tice ;  the  plea  should  be  set  down  for 
argument.  Corlies  v.  Corlies,  8  C.  E. 
Or.  197  ;  hut  see  rule  213.  And  a  plea 
or  demurrer  must  be  noticed  and  set 
down  for  argument  for  tha  next  term, 
by  the  party  demurring  or  pleading, 
within  ten  days  after  the  time  limited 
for  filing  the  same.  Bev.,  "  Chancery" 
I  24.  In  all  suits  where  the  equities 
between  the  parties  shall  have  been 
settled  by  an  interlocutory  decree,  the 
cause  may  be  at  once  set  down  for 
final  hearing,  and  a  final  decree  may 
be  entered  at  the  same  term  after  such 
hearing.     Rule  16. 


172 


FORMS   OF   PLEADINGS. 


at  the  State-house,  in  the  city  of  Trenton,  at  the  hour  of  ten 
o'clock  in  the  forenoon  of  that  day,  or  as  soon  thereafter  as 
counsel  can  be  heard  thereon. 

By  the  court. 

Clerk. 


Notice  of  hearing.(a) 

{Title  of  cause.) 

Take  notice,  that  this  cause  will  be  brought  to  a  hearing  on 
bill  and  answer,  {or,  "  on  pleadings  and  proofs,"  or,  "  on  the 
demurrer,"  or  "  plea,")  filed  therein,  {or,  "  on  bill,  answer,  repli- 
cation and  proofs,"  or,  "  on  the  exceptions  filed  by  complainant 
{or  *  defendant ')  to  the  master's  report  therein,")  {or  as  the  case 
may  be,)  before  the  Chancellor,  on  the  first  day  of  the  next 
stated  term  of  this  court,  to  be  held  at  the  state-house,  in  the 


(a)  Each  regular  term  of  the  court 
shall  continue,  for  the  setting  down 
of  causes  and  arguments,  until  the 
twentieth  day  thereof,  and  for  all 
other  purposes  until  the  next  regular 
term ;  but  no  arguments  or  contested 
motions  shall  be  heard  between  the 
sixteenth  day  of  July  and  the  first  day 
of  September,  except  in  injunction 
cases,  unless  by  consent  and  the  special 
order  of  the  Chancellor.  Rule  1. 
And  no  cause  shall  be  set  down  for 
hearing  on  any  day  in  term  after  the 
twentieth  day.  Rule  10.  Notices  of 
bringing  causes  to  a  hearing,  including 
the  bringing  on  the  argument  of  a 
plea,  demurrer  and  of  exceptions  to  a 
master's  report,  shall  be  served  at 
least  fifteen  days  before  such  intended 
hearing  or  argument;  and  the  order 
setting  down  exceptions  to  a  master's 
report  for  argument,  must  be  both 
entered  and  served  before  the  expir- 
ation of  the  time  limited  by  the  rule 
nisi,  or  the  report  may  be  confirmed. 


Rule  11;  Morris  v.  Taylor,  8  C.  E. 
Cr?-.  131.  Every  cause  shall  be  noticed 
for  hearing  at  the  next  term  after  the 
evidence  therein  is  closed,  provided 
there  shall  be  sufficient  time  to  notice 
it  at  or  in  such  term.  Rule  10.  When 
a  party  shall  set  down  a  cause  for 
hearing  or  argument,  and  give  notice 
thei'eof,  and  shall  not  bring  on  the 
same  agreeably  to  his  notice,  the 
opposite  party,  upon  the  production 
of  the  notice,  shall  be  entitled  to  costs 
to  be  taxed,  for  the  attendance  on  the 
court,  unless  the  court  shall  order  oflT 
the  hearing  or  argument  without  costs. 
Rule  106  When  the  hearing  or 
argument  of  a  cause  shall  be  ordered 
ofl"  upon  the  application  of  a  party  to 
whom  notice  has  been  given,  the 
party  setting  down  the  cause  shall  be 
entitled  to  costs  for  attendance  on  the 
court  upon  such  notice,  to  be  taxed, 
unless  the  court  shall  order  off"  the 
hearing  or  argument  without  costs. 
Rule  107. 


HEARING.  173 

city  of  Trenton,  at  the  hour  of  ten  o'clock  in  the  forenoon  of 
that  day,  or  as  soon  thereafter  as  counsel  can  be  heard  thereon. 

Dated,  &c.  Yours,  &c., 

{Signature  of  solicitor.) 

To  ,  Solicitor  of  defendant. 

Order  for  hearing  of  exceptions  to  the  report  of  a 

master.(a) 

{Title  of  cause.) 

This  matter  being  opened  to  the  court,  by,  &c.,  and  it  appear- 
ing that  exceptions  have  been  taken  and  filed  to  the  report  of 
,  one  of  the  masters  of  this  court,  to  {state  the  nature  of 
the  exceptions,)  and  on  reading  and  filing  proof  of  due  notice  of 
this  application :  It  is,  on  this,  &c.,  on  motion  as  aforesaid, 
ordered,  that  the  said  exceptions  be  set  down  to  be  heard  before 
the  Chancellor  {or  "  one  of  the  Vice  Chancellors,")  on  , 

the  day  of  next,  at 

Submission  of  cause  without  argunient.(6) 

{Title  of  cause.) 
It  is  stipulated  and  agreed  that  this  cause  be  submitted  to  the 

(a)  Exceptions  to  a  master's  report  accompanied  by  briefs  or  notes  of  the 

may  be  set  down  to  be  heard  at  any  points  and  cases  upon  which  the  said 

day  in  the  term,  on  the  application  of  parties  respectively  rely.     JRule  17. 

either   party ;    but   five   days'   notice  Argument    of    the    cause.      The 

shall   be  given  of  such   application.  party  who  sets  down  any  cause,  plea 

Rule  12.     If  the  solicitor  of  the  ad-  or  demurrer  for  hearing  or  argument, 

verse   party   do   not    attend    on    the  shall  deliver  to  the  Chancellor,  before 

hearing  of  the  motion,  then  serve  him  the   commencement    of   the    hearing 

with  a  copy  of  the  order.  or  argument,  an  abbreviation  of  the 

If  no  order  is  applied  for,  the  ex-  pleadings,  or   a  state  of  the  case   as 

ceptions  must  be  set  down  for  hearing  contained  in  the  pleadings ;  and  each 

and  placed  upon  the  calendar,  as  pro-  party  shall  also  furnish   him  with  a 

vided  in  the  eleventh  rule.     Morris  statement   of  the   material   points  of 

V.  Taylor,  8  C.  E.  Or.  131.  the  case  on  which  he  intends  to  rely. 

(6)  Where  cases  are   submitted   to  BuleS.  On  all  hearings  and  arguments 

theChancellor  without  argument,  such  before   the   court,   after   reading  the 

submission   shall   be  made  by  agree-  pleadings,  one  of  the  counsel  for  the 

mentin  writing,  signed  by  the  solicitors  complainant    or    party    holding    the 

of  the  respective  parties,  and  shall  be  affirmative,  and  having  the  right  of 


174 


FORMS   OF   PLEADINGS. 


Chancellor  on  written  arguments.     The  complainant's  counsel 
to  serve  his  argument  within  days,  and  the  defendant's 


opening,    shall    open    the    cause    or 
matter  in  question,  then  two  counsel 
for  the  adverse  party  may  be  heard  in 
answer,  after  which  one  counsel  only, 
for  the  party  having  the  opening,  may 
be  heard  in  reply ;  but  in  case  there 
be  several  defendants  who  have  sepa- 
rate and  distinct  interests,  and  different 
counsel  concerned  for  them,  then  the 
counsel  for  the  respective  defendants 
shall   be  heard  in  such  order  as  the 
court  may  direct,  but  in  no  case  shall 
more  than  two  counsel  be  heard  for 
one  defendant ;  and  if  more  than  two 
counsel  are  heard  in  answer  for  the 
defendants,  in  that  case  two  counsel 
may   be    heard    in    reply.     Rule  7. 
Upon  hearing  on  bill,  cross-bill,  an- 
swers   and    depositions,   where    both 
causes  come  on  to  be  heard  together, 
and    each    party   has  material   alle- 
gations to  sustain  under  his  bill,  the 
complainant   in  the   original   bill   is 
entitled    to   the   opening   and   reply. 
Murphy  v.  Stults,  Sax.  561.     Where 
there  are  two  defendants  who  set  up 
adverse  claims,  the  practice  is  for  the 
complainant  to  open;  for  the  defend- 
ant who  sets  up  a  claim  against  the 
other,  then  to  go  on,  and  for  the  other 
defendant  to  answer ;  there  is  no  reply 
between  the  defendants,  unless  spec- 
ially directed  by  the  court.    Walton  v. 
Van  Mater,  April,  1823.     Upon  plea 
or  demurrer,  the  defendant  holds  the 
affirmative,  and  opens  the  argument ; 
upon  exceptions  to  a  master's  report, 
the  party  excepting  opens  the  argu- 
ment ;  but  where  both  parties  except, 
the  complainant's  counsel  is  first  heard 
upon   his   exceptions,   and    then   the 
defendant's  counsel  answers  him,  and 
opens   the   argument    upon   his   own 
exceptions.     1    Barb.    Ch.   Pr.  317. 


"Where  the  cause  is  heard  on  bill  and 
answer,  the  course  of  procedure  is  the 
same  as  on  a  hearing  on  pleadings 
and  proofs;  the  statements  in  the 
answer  must  be  taken  as  true,  without 
regard  to  their  improbability.  Booraem, 
V.  Wells,  4  C.  E.  Gr.  87. 

If  any  complainant  proceed  to  a 
hearing  on  bill  and  answer  only, 
the  answer  shall  be  taken  to  be  true 
in  all  points,  and  no  evidence  can  be 
received  to  contradict  the  answer, 
unless  it  be  matter  of  record  to  which 
the  answer  relates,  and  is  provable  by 
the  same  record.  Rex:,  "  Chancery," 
§  43 ;  Phillips  v.  Kinney,  MS.,  Wil- 
liamson, C.  Where  a  cause  was 
brought  on  for  hearing  on  bill  and 
answer,  and  the  complainant  failed  in 
making  out  his  case  for  want  of  an 
absolute  admission  of  it  by  the  answer, 
the  court,  under  the  circumstances  of 
the  case,  permitted  him  to  reply,  on 
payment  of  costs.  Parker  v.  Wyld,  1 
Vern.  140.  If  the  complainant  shall 
not  attend  at  the  time  appointed  for 
the  hearing  of  the  cause,  his  bill  will 
be  dismissed,  with  costs.  If  the  de- 
fendant shall  not  attend,  the  pleadings 
and  proofs  shall  be  read,  on  the  part 
of  the  complainant,  and  the  court 
thereupon  will  decree  in  favor  of  the 
complainant,  or  dismiss  his  bill,  as  the 
case  may  require.  Eev.,  "  Chancery," 
l\  48,  49. 

Hearing  of  the  cause  before  the 
Vice  Chancellor  or  an  advisory 
master.  When  a  cause  referred  to  the 
Vice  Chancellor  shall  be  at  issue, 
either  party  may,  upon  five  days' 
notice  to  the  other  party  or  parties, 
apply  to  the  Vice  Chancellor  to  whom 
the  cause  is  referred  to  fix  a  time 
and   place  for  the  hearing  thereof; 


HEARING. 


175 


counsel  to  answer  the  same  and  submit  the  cause  within 
days  thereafter. 

{Signatures  of  solicitors.) 
Dated,  &c. 


and  upon  such  application  the  Vice 
Chancellor  may  designate  such  time 
and  place ;  and  upon  fifteen  days' 
notice,  in  writing,  of  the  time  and 
place  so  designated,  given  by  either 
party  to  the  other  or  others,  the  cause 
may  be  heard  Bule  195.  At  the 
time  designated  for  the  hearing  of  a 
cause,  the  hearing  shall  not  be  put 
off  (except  by  consent)  for  the  absence 
of  a  material  witness,  unless  the  Vice 
Chancellor  shall  be  satisfied  that  a 
fair  and  earnest  effort  has  been  made 
in  proper  time  to  procure  the  attend- 
ance of  such  witness,  and  if  such 
attendance  could  not  be  procured,  to 
procure  his  deposition ;  and  the  Vice 
Chancellor  may,  in  his  discretion, 
order  the  hearing  to  proceed,  and 
direct  that  any  material  witness  named 
may  be  examined  orally,  or  his  de- 
position procured  at  a  future  day 
fixed  and  named  in  such  order; 
but  the  matter  to  be  proved  by  such 
witness  shall  be  disclosed  at  the  mak- 
ing of  such  order,  and  no  hearing 
shall  be  postponed  for  any  cause, 
unless  a  future  time  and  place  for 
hearing  be  fixed  and  designated,  and 
such  terms  as  to  costs  as  may  be 
directed  by  the  Vice  Chancellor  be 
complied  with.  The  argument  of  a 
cause  or  matter  may  be  had,  at  the 
discretion  of  the  Vice  Chancellor, 
either  immediately  upon  the  closing  of 
the  testimony,  or  at  a  future  day  to  be 
fixed.  Rule  199.  At  the  time  noticed 
or  designated  for  hearing,  both  parties 
shall  attend  with  their  witnesses  and 
other  evidence,  and  the  cause  shall 
proceed  as  at  a  trial  at  law  before  a 
jury,  by  the  oral  examination  of  the 
witnesses  on  both  sides  continuously, 


until  all  the  evidence  has  been  pro- 
duced and  closed;  the  party  holding 
the  affirmative  first  producing  all  his 
evidence,  ajid,  after  resting,  he  shall 
be  permitted  to  produce  evidence  in 
rebuttal  only ;  but  the  Vice  Chancellor 
may,  in  his  discretion,  reserve  to 
either  party  the  right  to  produce  one 
or  more  witnesses,  who  shall  be  named, 
to  be  examined  orally  or  by  deposi- 
tion at  a  future  day.  But  such  right 
shall  not  be  granted,  unless  the  Vice 
Chancellor  be  satisfied  that  due  dili- 
gence has  been  used  to  procure  the 
attendance  or  deposition  of  such  wit- 
ness before  the  trial,  nor  unless  it  be 
fairly  disclosed  what  is  expected  to  be 
proved  by  such  witness,  and  such  evi- 
dence shall  appear  to  be  material  and 
shall  not  be  admitted  by  the  other 
party  or  parties.  Rule  196.  If  a 
report  of  the  evidence  so  taken  before 
him  shall  become  necessary  in  the 
progress  of  the  cause,  for  use  on  appeal 
from  the  decree  of  the  Chancellor 
thereon  or  otherwise,  the  Vice  Chan- 
cellor shall  settle  and  sign  such  report. 
Rev.,  "  Chancery,"  §  117.  An  advisory 
master  shall  hear  a  cause  or  matter  in 
the  same  manner  as  provided  by  the 
rules  of  the  court  in  the  case  of  refer- 
ences to  the  Vice  Chancellor,  and  all 
the  provisions  of  such  rules,  witii 
respect  to  fixing  the  time  for  the 
hearing  of  a  cause,  (as  far  as  applica- 
ble,) the  taking  of  testimony,  as  well 
de  bene  esse  as  otherwise,  the  exclud- 
ing of  incompetent  evidence,  and  the 
hearing  and  conduct  of  the  cause  before 
the  Vice  Chancellor,  shall  govern  th6 
like  matters  in  cases  before  the  ad- 
visory masters.     Rule  202. 


176 


FORMS   OF   PLEADINGS. 


Order  of  reference  to  a  Vice  Chancellor  or  an 
advisory  niaster.(a) 

{Title  of  cause.) 

It  is,  on  this,  &c.,  on  motion  of,  &c.,  ordered,  that  the  above- 
stated  cause  be  referred  to  ,  one  of  the  Vice  Chancellors, 
[ovy  "  ,  one  of  the  advisory  masters  of  this  court,")  to 
hear  the  same  for  the  Chancellor,  and  to  report  thereon  to  him, 
and  advise  what  order  or  decree  should  be  made  therein. 

Order  for  cause  to  stand  over  to  add  parties.(6) 

{Title  of  cause.) 
This  cause  comiDg  on  to  be  heard  this  day,  and  counsel  for 
both  parties  having  been  in  part  heard ;  and  it  appearing  that  * 


(a)  The  Chancellor  may  refer  to  a 
Vice  Chancellor  (or  to  an  advisory 
master)  any  cause  or  other  matter 
which  at  any  time  may  be  pending 
in  the  Court  of  Chancery,  to  hear  the 
same  for  the  Chancellor,  and  to  report 
thereon  to  him,  and  advise  what  order 
or  decree  should  be  made  therein ; 
and  any  matter  or  cause  in  which 
the  Chancellor  is  interested  may  be 
referred  to  a  Vice  Chancellor.  Bev., 
"Chancery,"  ?  116;  Laws  of  1878,  p. 
290.  Any  cause  or  other  matter  may 
be  referred  to  a  Vice  Chancellor  (or 
to  an  advisory  master,)  at  the  discre- 
tion of  the  Chancellor.  Application 
for  such  reference,  if  not  made  by  both 
parties,  may  be  in  the  presence  of,  or 
upon  five  days'  notice  to  the  adverse 
party  or  his  solicitor.  Rule  193. 
When  a  cause  shall  be  referred  to  a 
Vice  Chancellor  (or  to  an  advisory 
master,)  all  proceedings  in  it  to  the 
final  decree  shall  be  had  before  him. 
Rules  194,  202. 

(6)  It  is  the  established  practice  in 
England  that  causes  will  never  be  dis- 
missed for  want  of  parties,  but  are  only 
ordered  to  stand  over  on  paying  the 
costs,  in  order  to  give  the  complainant 
an  opportunity  to   make   the   proper 


parties.  1  Rarb.  Ch  Pr.  321,  and  cases 
«  cited.  The  proper  time  for  taking  an 
objection  for  want  of  parties  is  upon 
opening  the  pleadings  and  before  the 
merits  are  discussed.  Jones  v.  Jones, 
3  Atk.  111.  But  when  it  appears,  at 
any  time  before  final  decree,  that  a 
person  not  made  a  party  is  a  necessary 
party  to  the  suit,  courts  of  equity  will, 
of  their  own  motion,  arrest  the  pro- 
ceedings, that  such  person  may  be 
made  a  party.  Van  Keuren  v.  Mc- 
Laughlin, 6  C.  E.  Or  163,  379  ;  Sey- 
mour V.  Long  Dock  Co.,  2  C.  E.  Gr. 
169.  By  statute  in  New  Jersey,  ap- 
plications to  be  made  parties  by  per- 
sons who  have  acquired  an  interest  in 
the  subject-matter  of  the  suit  since  the 
filing  of  the  bill,  may  be  made,  either 
before  or  after  decree,  by  petition 
instead  of  by  the  filing  of  a  supple- 
mental bill.  The  forms  and  the  prac- 
tice under  this  statute  will  be  given  in 
a  subsequent  part  of  this  work. 

An  order  allowing  the  cause  to 
stand  over  is  a  relaxation  on  the  part 
of  the  court,  and  is  always  considered 
as  made  by  consent ;  therefore,  it  can- 
not be  appealed  from.  Reresford  v. 
Adair,  2  Cox  156. 


HEAEING.  177 

is  a  necessary  party  defendant  {or  "  complainant ")  to  this 
cause:  It  is,  on  this,  &c.,  on  motion,  &c.,  ordered,  that  this  cause 
do  stand  over,  to  the  end  that  the  complainant  may  make  the 
said  a  party  thereto,  either  by  amendment  or  supple- 

mental bill,  as  he  may  be  advised. 

Order  for  cause  to  stand  over  to  supply  proofs.(a) 

{Title  of  cause.) 
As  in  preceding  form  to  *,  then,  "  the  complainant  has  omitted 
to  introduce  proof  of  the  death  of  ,  his  intestate,  {or  as 

the  case  may  be:)  It  is,  on  this,  &c.,  on  motion,  &c,,  ordered, 
that  this  cause  do  stand  over,  to  the  end  that  the  complainant 
may  examine  witnesses  to  prove  the  death  of  the  intestate  {or  as 
the  case  may  be.) 

Decretal  order  retaining  bill,  with  liberty  to  bring 
an  action  at  law.(6) 

( Title  of  cause.) 

This  cause  having  been  brought  to  hearing  upon  the  pleadings 
and  proofs  therein,  and  having  been  argued  by  ,  of  coun- 

(rt)    Leave   will    be   given    by   the  (6)  The  cases  in   which   the  court 

court,  at  the  hearing,  for  the  cause  to  retains   the  bill,  with   liberty  to  the 

stand  over  for  the  purpose  of  supply-  complainant   to  proceed   at   law,  are 

ing  defects  in   the  testimony,  under  those  in  which  it  is  necessary  to  estab- 

certain   circumstances.     See   1   Barb.  lish   his   right   at    law,   in   order   to 

Ch.  Ft.  *322,  and  cases  cited.     The  found  the  equitable  relief.     Walton  v. 

introduction  of  newly-discovered  evi-  Laiv,  6   Ves.  150.     The   complainant 

dence  to  facts  in  issue  in  the  cause,  cannot  take  advantage  of  this  practice 

after   publication   and   knowledge   of  to  try  whether  he  has  a  claim  at  law, 

the  former  testimony,  and  even  after  and  failing  there,  to  come  into  chan- 

hearing,  may  be  allowed,  in  the  dis-  eery  and  try  to  raise  an  equity.    Ibid. 

cretion  of  the  court,  where  it  is  indis-  The  court  does  not,  by  retaining  the 

pensable  to  the  merits  and  justice  of  bill,  admit  the  complainant's  right  to 

the  cause.     Mulock  y.  Mulock,  1  Stew.  equitable  relief,   but   may,  neverthe- 

Eq.   15.     A   defendant    may,   in   the  less,  ultimately  determine  against  the 

discretion  of  the  court,  obtain  leave  complainant.     2    Dan.    Ch.   Pr.    {1st 

to  amend  his  answer,  after  the  cause  Am.  ed.)  1201  ;  Seatonon  Decrees  356. 

has  been   set   down  for   hearing.     If  If  the  title  to  dower  is  disputed,  the 

necessary,  leave  will  be  given  to  file  right  must  be  established  at  law,  and 

a  supplemental   answer.     Arnaud  v.  for  this  purpose  the  court  may  direct 

Grigy,  2  Stew.  Eq.  1 .  an  issue,  or  in  its  discretion  retain  the 


178  FORMS  OF   PLEADINGS. 

sel  with  the  complainant,  and  by  ,  of  counsel  with  the 

defendant:  It  is,  on  this,  &c.,  ordered,  that  the  bill  in  this 
cause  be  retained  for  ,  with  liberty  to  the  complainant,  in 

the  meantime,  to  proceed  at  law  touching  the  matters  in  question 
in  this  cause,  as  he  shall  be  advised.  And  it  is  further  ordered, 
that  if  the  complainant  shall  commence  an  action  and  proceed  to 
trial  within  the  time  above  specified,  the  court  reserves  the  con- 
sideration of  the  costs  of  this  suit,  and  of  all  further  directions, 
until  after  such  trial  shall  be  had.  But  in  case  the  complainant 
shall  not  proceed  at  law,  and  go  to  trial  within  the  time  afore- 
said, his  bill  is,  from  thenceforth,  to  stand  dismissed  out  of  this 
court,  with  costs  to  be  taxed.  And  in  either  case,  any  of  the 
parties  are  to  be  at  liberty  to  apply  to  this  court,  as  they  shall 
be  advised. (a) 


FINAL  DECREE.(6) 

In  Chancery  of  New  Jersey. 
{Title  of  cause.) 
This  cause  coming  on  to  be  heard  at  the  present  (or  "  last ") 
regular  term  (or  as  the  case  may  be,)  of  the  Court  of  Chancery, 
held  at  the  state-house,  in  the  city  of  Trenton,  in  the  presence  of 

bill  with  liberty  to  the  complainant  to   be  disposed  of  there,  jurisdiction 

to  bring  an  action  at  law.     Palmer  v.  will   be  retained.     Mosse7-  v.  Pequest 

Casper  son,  2  C.  E.  Gr.  204.     It  was  Co.,  11  C.  E.  Gr.  200. 

ordered  that  the  bill  be  retained  for  (a)  Where  default  is  made  in  bring- 

twelve   months,   and    that   the  com-  ing   the  action  at   law,  the  bill  will 

plainant  be  at  liberty  to  bring  eject-  not  be  out  of  court,  unless  the  decree 

ment,   in    Tomlinson  v.   Sheppard,   3  expressly  directs  that,  upon   default, 

Hal.  Ch.  SO.     Another  cause  was  re-  the  bill  is  to  stand  dismissed  "  with- 

tained  for  the  purpose  of  putting  the  out  further  order."     2  Dan.  Ch.  Pr. 

defendant    to   his   election   either   to  995  ;  Seaton  on  Decrees  357  ;  see  Cater 

accept   the   title  or   to   abandon   the  v.Deivan,Dick.  65i;  Stevens  v.  Praed, 

contract   and   restore   the  possession.  2  Cox  374. 

Davison  v.  Perrine,  7  C.  E.  Gr.  87.  (6)  When  a  decree  finally  decides 

Where  a  controversy  is  already  before  and  disposes  of  the  whole  merits  of  the 

the  Court  of  Chancery,  and  the  whole  cause,  and  reserves  no  further   ques- 

matter  may  be  adjusted  there,  and,  in  tions  or  directions  for  the  future  judg- 

justice  to  some  of  the  parties,  ought  ment  of  the  court,  so  that  it  will  not 


FINAL   DECREE. 


179 


,  of  counsel  with  the  complainant,  and  ,  of  counsel 

with  the  defendants,  (or,  "  the  defendant  ,  the  complain- 

ant's bill  having  been  heretofore  taken  as  confessed  against  the 
other  defendants,")  and  the  pleadings  and  proofs  having  been 
read, (a)  and  the  arguments  of  the  respective  counsel  having 
been  heard  and  considered,  and  the  court  having  duly  considered 
the  said  pleadings,  proofs  and  arguments,  (or,  "  and  it  appear- 
ing(6)  to  the  court  that  the  complainant  is,"  or,  "  is  not,") 
entitled  to  the  relief  sought  and  prayed  for  by  him  in  his  bill  of 
complaint :  It  is,  on  this  day  of  ,  one  thousand  eight 

hundred  and  ,(c)  by  ,  Chancellor  of  the  State  of 


be  necessary  to  bring  tlie  cause  again 
before  the  court  for  its  final  decision, 
it  is  a  final  decree.  3[ills  v.  Hoag,  7 
Paige  18  ;  see  Neivark  Plank  Road  Co. 
V.  Elmer,  1  Stock.  754.  A  decree  may 
be  final,  although  it  directs  a  reference 
to  a  master,  if  all  the  consequential 
directions  depending  upon  the  result 
of  the  master's  report  are  contained  in 
the  decree,  so  that  no  further  decree 
of  the  court  will  be  necessary,  upon 
the  confirmation  of  the  report,  to  give 
the  parties  the  entire  and  full  benefit 
of  the  previous  decision  of  the  court. 
Ibid.;  see  Decker  v.  Puckman,  1  Slew. 
Eq.  614;  Whiting  v.  Bank  U.  S.,  13 
Peters  15 ;  Michoitd  v.  Girod,  4  Sow. 
•503  ;  For  gay  v.  Conrad,  6  How.  204. 

Every  party  who  may  be  affected 
by  any  order  or  decree  shall  be  held 
to  have  waived  all  objection  to  the 
form  thereof,  unless  he  shall  file  his 
objection  thereto  in  ten  days  from  the 
time  of  filing  such  order  or  decree. 
The  objection  shall  specify  the  part  or 
parts  of  the  order  or  decree  to  which 
he  objects  and  state  what  the  form 
ought  to  be,  provided  that  nothing 
herein  contained  shall  be  held  to  pre- 
vent or  preclude  an  application  to  the 
Chancellor  to  settle  the  form  of  the 
order  or  decree  at  any  time.  Rule  220. 


(a)  A  decree  shall  not  contain  any 
recital  of  the  bill,  answer  or  other 
pleadings,  but  the  pleadings,  report, 
or  other  matters  or  documents  on 
which  the  decree  is  founded,  should 
be  merely  referred  to.  Rev.,  "  Chan- 
cery," ?  51 ;  2  Dan.  Ch.  Pr.  1002. 

(6)  Where  the  suit  seeks  a  declara- 
tion of  the  rights  of  the  parties,  the 
ordering  part  of  the  decree  should  be 
prefaced  by  such  a  declaration.  Jenour 
V.  Jenour,  10  Ves.  562,  568. 

(c)  Where  a  party  in  interest  dies 
after  the  argument  and  before  the 
signing  of  the  decree,  the  decree  and 
orders  in  the  cause  should  be  signed 
and  filed  as  of  the  date  of  the  argu- 
ment. An  order  for  that  purpose  is 
necessary.  Burnham  v.  Dalling,  1  C. 
E.  Qr.  310.  So  where  a  sole  com- 
plainant or  defendant  dies.  Benson 
v.  Woolverion,  1  C.  E.  Gr.  110.  When 
the  decree  is  entered  nunc  pro  tunc 
the  order  required  may  be  made  by 
inserting  a  recital  and  direction  in  the 
decree  in  the  following  form :  "And  it 
appearing,  (by  aflidavit,)  to  the  satis- 
faction of  the  court,  that  the  com- 
plainant, ,  {or,  'defendant,  ,') 
has  departed  this  life  since  the  argu- 
ment of  this  cause :  It  is  further 
ordered  that   this  decree  be  entered 


180 


FORMS   OF   PLEADINGS. 


New  Jersey,  ordered,  adjudged  and  decreed,  {in  case  the  relief 
prayed  for  is  denied,  insert  here,  "  that  the  complainant's  bill  be 
and  the  same  is  hereby  dismissed,  with  costs,")  and  the  said 
Chancellor,  by  virtue  of  the  power  and  authority  of  this  court, 
doth  hereby  order,  adjudge  and  decree  that,  &c.,  {stating  the 
relief  granted.){a) 

And  *  it  is  further  ordered  and  decreed  that  the  defendants 
pay  to  the  complainant  the  costs  of  this  suit  to  be  taxed,  and 
that  execution  issue  therefor  according  to  the  practice  of  this 
court(6),  {or,  if  further  directions  are  reserved,  after  *  say,  "  the 
consideration  of  all  further  directions,  and  of  the  costs  of  this 
suit,  are  reserved  until  after  the  said  master  shall  have  made  his 
report,"  or  as   the  case  may  be.){c)     {If  the  decree  requires  a 


nunc  pro  tunc  as  of  the  day  of 

,  the  day  when  this  cause  was 
argued."  1  Barb.  Ch.  Pr.  *340. 
Decree  signed  by  Chancellor  on  the 
opinion  of  his  predecessor  in  office. 
Buckman  v.  Decker,  12  C.  E.  Or.  244. 
If  the  Chancellor  by  whom  any  cause 
shall  have  been  finally  heard  and 
determined  shall  go  out  of  office,  and 
some  other  person  shall  be  appointed 
Chancellor,  before  the  proceedings 
and  final  decree  shall  have  been 
enrolled  and  signed,  then  his  successor 
in  office  shall  sign  such  enrollment 
with  his  own  name,  prefixing  to  his 
signature  the  words  "  by  the  statute," 
and  all  proceedings  and  decrees  so 
signed  shall  be  as  good  and  efTectual 
in  law  as  if  the  same  had  been  duly 
signed  by  the  Chancellor  who  pro- 
nounced such  decrees.  Bev.,  "  Chan- 
cery," §  55.  Where  the  original  decree 
was  lost,  the  court  permitted  it  to  be 
entered  nunc  pro  tunc,  from  the  office 
copy,  after  the  lapse  of  twenty-three 
years.  Lawrence  v.  Bichmond,  1  J.  & 
W.  241 ;  Donne  v.  Lewis,  11  Ves.  601 ; 
see  Jesson  v.  Brewer,  Dick.  370.  In 
all  cases  where  a  decree  pro  confesso 
may  be  taken  in  vacation,  it  shall  be 


lawful     *     *     *     to   make   a   final 
decree  in  vacation.   Bev.,  "  Chancery," 

H. 

(a)  The  decree  must  be  in  words  at 
length,  and  not  in  figures. 

(6)  No  execution  shall  issue  for 
costs  allowed  by  any  decree  or  order 
of  the  court,  unless  specially  directed. 
Bule  112. 

(c)  The  reservation  of  further  con- 
sideration is  not  confined  to  the  first 
decree,  but  will  be  repeated  in  every 
decree  in  which  it  may  be  necessary 
to  direct  an  inquiry ;  after  such  a 
reservation  the  court  will  not  interfere 
upon  the  matter  reserved  in  a  sum- 
mary Avay,  but  will  require  the  cause 
to  be  set  down  for  hearing.  2  Dan. 
Ch.  Pr.  993  ;  Cook  v.  Gwyn,  3  Atk. 
689.  Where  costs  are  given  by  the 
decree  at  the  hearing,  the  subsequent 
costs  will  be  included. 

In  all  suits  where  the  equities  be- 
tween the  parties  have  been  settled  by 
an  interlocutory  decree,  the  cause 
may  be  at  once  set  down  for  final 
hearing,  and  a  final  decree  may  be 
entered  at  the  same  term  after  such 
hearing.  Bule  16 ;  Decker  v.  Buck- 
man,  1  Stew.  Eq.  617.  Where  a  decree 


FINAL    DECKEE. 


181 


further  order  to  complete  it,  add  "  and  any  of  the  parties  are  to 
be  at  liberty  to  apply  to  this  court  as  occasion  shall  require.")(a) 

[Forms  of  decrees  in  particular  causes  will  be  found  in  a  subse- 
quent part  of  this  work.) 

(  Where  a  party  *  required  to  do  any  act,  as  in  a  creditor's  bill, 
say,)  And  it  is  further  ordered,  adjudged  and  decreed,  that  the 
said  shall,  within  days  after  service  upon  him  of  a 

copy  of  this  decree  and  of  the  taxed  bill  of  costs  in  this  cause, 
pay  to  the  complainant  the  said  sum  of  ,  together  with 

interest  thereon  as  aforesaid,  and  the  taxed  costs  of  this  suit,  and 
that  in  default  thereof,  an  execution  issue,  &c.(6) 


reserves  further  directions  and  equity 
until  the  coming  in  of  the  master's 
report,  the  cause  should  be  set  down 
for  hearing  on  the  equity  reserved. 
Buchman  v.  Decker,  1  Stew.  Eq.  5;  6 
Stew.  Eq.  545.  Every  party  who  may 
be  affected  by  any  order  or  decree 
shall  be  held  to  have  waived  all 
objection  to  the  form  thereof,  unless 
he  shall  file  his  objection  thereto  in 
ten  days  from  the  filing  of  the  order 
or  decree.  Every  party  who  may  be 
affected  by  an  award  of  costs  in  any 
order  or  decree  where  the  opinion  is 
silent  on  the  subject  of  costs,  shall  be 
deemed  to  have  waived  all  objection 
thereto  unless  he  objects,  in  writing, 
in  ten  days  from  the  filing  of  the 
order  or  decree.  Rules  220,  221.  But 
application  may  be  made  at  any  time 
to  settle  the  form  of  the  order  or 
decree  or  to  change  the  same  as  to  the 
award  of  costs.  No  steps  can  be  taken 
to  enforce  the  provisions  of  th^  decree 
or  to  carry  the  same  into  execution 
within  ten  days  from  the  filing  thereof 
without  the  special  order  of  the  court, 
and  an  appeal  from  the  final  decree 
within  the  ten  days  stays  the  issuing 
of  process  thereon.     See  rule  149. 

(a)  This  clause  has  not  the  effect  to 
alter  the  final  nature  of  the  decree.   A 


decree  with  such  a  liberty  reserved  is 
still  a  final  decree,  and  when  signed 
and  enrolled,  may  be  pleaded  in  bar 
to  another  suit  for  the  same  matter. 
The  effect  of  the  reservation  is  to  per- 
mit persons  having  an  interest  under 
it  to  apply  to  the  court  touching  such 
interest,  in  a  summary  way,  by  motion 
or  petition  without  the  necessity  of 
again  setting  the  cause  down.  2  Dan. 
Ch.  Pr.  (Ist  Am.  ed.)  1203;  Anon.,  4 
Madd.  228 ;  Heathcote  v.  Edwards,  Jac. 
504.  It  has  been  held  that  the  reser- 
vation of  liberty  to  apply  does  not 
extend  to  an  application  by  com- 
plainant to  be  allowed  costs,  as  to 
which  there  is  no  express  direction  in 
the  decree.  Kendall  v.  3Iarsters,  2 
De  G.,  F.  &  J.  200.  When  a  decree 
is  entei'ed  by  consent,  the  merits  shall 
never  be  inquired  into.  7  Vin.  Abr. 
398. 

(6)  Every  decree  or  order  requiring 
a  person  to  do  an  act,  is  to  state  the 
time,  or  the  time  after  service  of  the 
decree  or  order,  within  which  the  act 
is  to  be  done.  2  Dan.  Ch.  Pr.  1005. 
Where  a  decree  of  the  Court  of  Chan- 
cery shall  be  made  for  a  conveyance, 
release  or  acquittance  of  lands,  or  any 
interest  therein,  and  the  party  against 
whom  the  said  decree  shall  pass  shall 


182  FORMS   OF   PLEADINGS. 

Decree  on  final    hearing  in   the   absence  of  the 

complainant,  (a) 

{Title  of  cause.) 

This  cause  having  been  regularly  set  down  for  hearing  at  the 
last  term  of  this  court,  and  the  complainant  not  attending 

at  the  time  appointed  for  the  hearing,  either  in  person  or  by 
counsel,  and  ,  the  answering   defendant,  appearing  by 

,  his  counsel,  and  the  pleadings  and  proofs  in  the  cause 
having  been  read  and  the  arguments  of  the  counsel  of  the  said 
defendant  heard,  and  the  Chancellor  having  considered  the  said 
pleadings,  proofs  and  argument :  It  is,  on  this,  &c.,  ordered  and 
decreed  that,  &c.,  {then  follows  the  decretal  part  in  favor  of  the 
defendant  or  complainant,  as  the  case  may  require,  or  a  dismissal 
of  the  bill,  with  costs.) 


KEHEARING.(6) 

{Title  of  cause  and  address.) 

The  petition  of             ,  the  defendant   in   the  above-stated 

cause,  respectfully   shows,  that  your   petitioner   finds   himself 
much  aggrieved  by  a  decree  made  by  your  Honor  in  this  cause, 

not  comply  therewith  by  the  time  ap-  and  proofs  shall  be  read  on  the  part 
pointed,  then  such  decree  shall  be  of  the  defendant  or  defendants;  the 
considered  and  taken,  in  all  courts  of  court  thereupon  may  decree  in  favor 
law  and  equity,  to  have  the  same  of  the  defendant  or  defendants,  or 
operation  and  effect,  and  be  as  avail-  complainant  or  complainants,  as  the 
able,  as  if  the  conveyance,  release  or  case  may  require,  or  may  dismiss  the 
acquittance  had  been  executed  con-  complainant's  said  bill,  with  costs. 
formably  to  such  decree,  and  this  not-  Mev.  Sup.,  ''Chancery,"  §  3. 
withstanding  any  disability  of  such  (b)  As  long  as  the  decree  and  pro- 
party  by  infancy,  lunacy,  coverture  ceedings  are  not  enrolled,  it  is  in  the 
or  otherwise.  Hev.,  "Chancery,"  I  power  of  the  court  to  grant  a  rehear- 
63 ;  see  Price  v.  Sisstn,  2  Beas.  168 ;  ing.  Brumagim  v.  Chew,  4  C.  E.  Gr. 
2  C.  E.  Or.  476 ;  Kloepping  ads.  Stell-  337.  A  rehearing  in  equity  rests  in 
macher,  7  Vr.  177.  the  discretion  of  the  court.  It  is  not 
(a)  If  the  complainant  shall  not  regarded  here  so  much  a  matter  of 
attend  at  the  time  appointed  for  the  course  as  in  the  English  practice,  y. 
hearing  of  the  cause,  the  bill,  answer,  J.  Zinc  Co.  v.  Franklinite  Co.,  1  Mc- 
replication,  documents,  examinations  Cart.  308.     Eehearings  in  equity  are 


EEHEARING. 


183 


on  the  day  of  last,  whereby  it  was,  among  other 

things,  ordered  and  decreed  that  {insert  the  decree  or  part  com- 
plained of.)     And  your  petitioner  submits,  that  so  much  of  the 


allowed  in  the  United  States  courts 
only  where  some  plain  omission  or 
mistake  has  been  made,  or  where 
something  material  to  the  decree  is 
brought  to  the  notice  of  the  court, 
which  had  been  overlooked.  Jenkins 
V.  Eldredge,  3  Story  299.  Where  a 
rehearing  is  sought  on  the  ground  of 
newly-discovered  evidence,  after  an 
interlocutory  decree,  the  court  will 
grant  such  a  rehearing  upon  the 
filing  of  a  supplemental  bill,  if  the 
evidence  is  of  such  a  nature  as  to 
entitle  the  party  to  relief,  upon  a  bill 
of  review,  or  a  supplemental  bill  in 
the  nature  of  a  bill  of  review,  after  a 
final  decree,  but  not  otherwise.  Baker 
v.  Whiting,  1  Story  218.  The  court 
always  inclines  to  grant  a  rehearing 
upon  the  usual  certificate  of  counsel, 
if,  upon  the  matters  stated  in  the 
petition,  there  is  apparent  ground  for 
apprehending  that  an  error  has  been 
committed  or  injustice  done  by  the 
decree,  or  if  there  is  reason  for  believ- 
ing that  a  further  and  fuller  argument 
will  shed  new  light  upon  the  contro- 
versy or  advance  the  ends  of  justice. 
N.  J.  Zinc  Co.  V.  Franklinite  Co., 
supra.  When  the  ground  on  which 
the  petition  for  a  rehearing  rests, 
does  not  affect  the  merits  of  the  con- 
troversy, nor  is  a  matter  by  which  the 
petitioner  can  be  aggrieved,  and  when 
its  only  effect  would  be,  if  maintained, 
to  turn  the  complainant  out  of  court 
as  an  improper  party,  leaving  the 
controversy  undecided,  the  applica- 
tion will  be  denied.  Ibid.  On  a 
petition  and  order  for  rehearing  gen- 
erally, the  whole  case  is  open ;  and 
the  party  supposing  himself  aggrieved 
has  a  right  to  insist  on  a  reconsidera- 


tion of  every  part  of  it.  Glover  v. 
Hedges,  Sax.  113.  A  rehearing  is 
always  granted  when  the  Chancellor 
apprehends  that  a  mistake  may  have 
been  made  in  the  decision,  either  in 
law  or  in  fact ;  but  never  when  the 
introduction  of  new  evidence  is  neces- 
sary to  show  the  mistake.  Brumagim 
V.  Chew,  4  C.  E.  Gr.  337.  If  the  ab- 
sence of  the  defendant  at  the  hearing 
was  involuntary  or  accidental,  and  a 
defence  was  intended  to  be  made,  the 
remedy  is  by  petition  to  the  Chan- 
cellor for  a  rehearing.  Tounsend  v. 
Smith,  1  Beas.  350.  Where  the  evi- 
dence failed  to  support  the  allegations, 
but  showed  complainant's  equity  on 
another  ground,  a  rehearing  was 
ordered.  Hoagland  v.  Titus,  1  C.  E. 
Gr.  44.  A  rehearing  will  not  be 
granted  if  the  evidence  proposed  to  be 
offered  be  merely  cumulative.  Mc- 
Dowell V.  Perrine,  9  Stevj.  Eq.  632. 
A  rehearing  may  be  granted  after 
decree,  on  evidence  which  the  solicitor 
of  the  party  applying  neglected  to 
present  to  the  court.  Day  v.  Allaire, 
4  Stew.  Eq.  303. 

Every  petition  for  a  rehearing  shall 
set  out  concisely  the  special  matter  or 
cause  on  which  such  rehearing  is 
applied  for,  and  shall  be  signed  by 
two  counsel,  except  in  cases  submitted 
without  argument,  when  it  shall  be 
sufficient  if  signed  by  one  counsel  ; 
and  if  a  rehearing  is  ordered,  the 
party  who  complains  of  the  decree  or 
order,  and  applies  to  have  it  corrected, 
shall  be  entitled  to  open  and  close  the 
argument.  Ride  143.  It  is  not  neces- 
sary to  state  the  proceedings  anterior 
to  the  decree  or  order  complained  of. 
In  a  complicated  case,  however,  the 


184 


FORMS   OF   PLEADINGS. 


said  decree  is  erroneous  as  relates,  &c.,  because  your  petitioner 
shows  unto  your  Honor,  that  at  the  hearing  of  the  said  cause 
it  was  alleged,  and  strongly  urged  and  insisted  on  the  part  of 
the  complainant,  that,  &c. ;  whereby  it  appeared  that,  &c. ;  and 
under  the  impression  that,  &c.,  your  Honor,  as  your  petitioner 
conceives,  made  the  decree  in  relation  to,  &c.  But  your  peti- 
tioner now  shows  unto  your  Honor,  that  he  has,  since  the  hear- 
ing, discovered  that,  &c.,  before  the  said  hearing,  and  that,  &c. ; 
and  that  your  petitioner,  through  inadvertence  or  forgetfulness, 
{or  as  the  case  may  be,)  has  neglected,  &c. 

And  your  petitioner  further  shows,  that  the  said  decree  has 
been  settled  and  filed,  but  has  not  yet  been  enrolled.  Where- 
upon your  petitioner  prays  that  your  Honor  will  be  pleased  to 
grant  a  rehearing  of  this  cause,  your  petitioner  submitting  to 
pay  such  costs  as  the  court  shall  award  in  case  his  complaint 
shall  be  found  groundless.  And  your  petitioner  will  ever 
pray,  &c.  {Signatures  of  eounsel.) 


.  petition  may  contain  a  full  statement 
of  the  facts  requisite  to  explain  the 
effect  and  working  of  the  decree 
sought  to  be  reheard  ;  nor  is  it  neces- 
sary it  should  state  the  reasons  why 
the  party  presenting  the  petition  is 
dissatisfied  with  the  original  decree  or 
order.  2  Ban.  Ch.  Pr.  1477  ;  Oifford 
V.  Hort,  1  Sch.  <fe  Lef.  398.  If  any 
order  of  the  court  has  been  made  since 
the  decree,  for  the  purpose  of  carry- 
ing its  provisions  into  effect,  it  should 
be  stated.  Wood  v.  Griffith,  1  3Ier.  35. 
The  petition  to  ojien  a  decree  should 
state  newly-discovered  evidence.  Mc- 
Doivell  V.  Perrine,  9  Stew.  Eq.  632. 
A  copy  of  every  petition  for  rehearing 
must  be  served  on  the  opposite  party, 
with  a  notice  of  presenting  the  same. 
Rule  144.  In  all  cases  submitted  by 
the  consent  of  parties  without  argu- 
ment, a  rehearing  shall  be  granted  of 
course,  if  either  party  is  dissatisfied 
with  the  decree  or  order  made  in 
such    case,  and    shall   apply  therefor 


within  ten  days  after  such  decree  or 
order  shall  be  made.  Rii.le  146.  A 
rehearing  of  decrees  signed  upon  the 
advice  of  the  Vice  Chancellor  may  be 
had  in  the  same  manner  and  upon 
the  same  terms  as  in  cases  heard 
by  the  Chancellor.  But  no  rehearing 
shall  be  ordered  as  to  conclusions  of 
fact,  unless  the  Vice  Chancellor  shall 
certify  that,  in  his  opinion,  the  ques- 
tions involved,  or  some  of  them, 
should  be  again  heard  upon  the  evi- 
dence. Ride  148  ;  Swallow  v.  Stcaltou; 
12  C.E.  Or.  278.  An  application  for 
the  rehearing  of  a  decree  advised  by 
a  Vice  Chancellor,  under  this  rule, 
should  ordinarily  be  made  to  the  Vice 
Chancellor  who  advised  the  decree, 
and  if  he  advise  a  rehearing  he  should 
rehear  it  himself  and  such  application 
should  be  made  to  and  entertained  by 
the  Chancellor  only  in  exceptional 
cases.  Rusling  v.  Bray,  11  Stew.  Eq. 
398. 


REHEAEING.  185 

We  certify  that  we  have  examined  the  case  referred  to  in  the 
foregoing  petition,  and  are  of  opinion  that  the  decree  therein 
mentioned  is  erroneous,  in  the  particulars  specified  in  the  said 
petition.  {Signatures  of  counsel.) 

Caveat  against  enrolling  a  final  decree.(a) 

{Title  of  cause.) 
Let  this  be  a  caveat  against  enrolling  and  signing  the  decree 
made  by  his  Honor  the  Chancellor,  bearing  date  the  day 

of  ,  18     . 

Witness  my  hand  this  day  of  ,  18     . 

{Signature  of  solicitor  or  party  entering  the  caveat.) 

Notice  of  presenting  petition  for  reliearing.(6) 

{Title  of  cause.) 
{As  on  page  148  to  *,  then,)  by  petition,  (a  copy  of  which  is 
hereto  annexed,)  for  an  order  that  the  prayer  of  the  said  petition 
be  granted,  and  that  "  the  enrollment  of  the  decree  in  said  cause 
and  "  all  further  proceedings  thereon,  {or,  "  on  the  decretal  order 
in  said  cause,")  be  stayed  pending  such  rehearing. 

Order  for  rehearing. (c) 

{Title  of  cause.) 
On  reading  the  petition  of  ,  the  defendant,  filed  in  the 

above-stated  cause,  praying  for  a  rehearing  of  the  said  cause, 

(a)  If  a  petition  for  rehearing  shall  petition,  on  the  opposite  party.     Rule 

be  presented  to  the  Chancellor  within  144. 

ten  days  after  pronouncing  any  final  In  the  absence  of  any  express  rule 

decree,  and  a  caveat  against  enrolling  on  the  subject,  it  is  presumed  that  the 

and  signing  the  same  shall   be  filed  notice  required  by  the  above  rule  will 

with  the  clerk  of  the  court,  such  final  be  the  same  as  tliat   required  on  all 

decree    shall    not    be    enrolled    and  special  motions. 

signed,  nor  any  process  issued  thereon  (c)  No  order  for  a  rehearing  shall 

until   the   said   application   shall    be  stay  proceedings  on  any  interlocutory 

finally  disposed  of.     Rule  145.  decree  or  order,  unless  by  the  special 

(6)    A    notice    of   presenting    the  direction  of  the  court.     Rule  liT. 

petition   to   the  Chancellor  shall   be  The   general   practice  of  applying 

served,  together  with   a  copy  of  the  for  rehearing  of  causes  in  the  Court  of 


186  FOEMS   OF   PLEADINGS. 

and  it  appearing  that  due  notice  has  been  given  of  this  applica- 
tion ;  and  upon  hearing  ,  of  counsel  with  the  petitioner, 
"  no  one  appearing  to  oppose,"  (or,  "  and  ,  of  counsel  with 
the  complainant : ")  It  is,  on  this  day  of  ,  &c.,  ordered 
that  a  rehearing  of  said  cause  be  granted ;  and  it  is  further 
ordered  that,  upon  the  said  defendant's  depositing  with  the  clerk 
of  this  court  the  sum  of  one  hundred  dollars,(a)  to  answer  such 
costs  as  this  court  shall  award  in  case  the  said  petitioner's  com- 
plaint shall  be  found  groundless,  that  ("  the  clerk  of  this  court 
refrain  from  enrolling  the  final  decree  in  this  cause,  and  that ") 
all  further  proceedings  in  this  cause,  on  the  part  of  the  said 
complainant,  be  stayed  until  the  further  order  of  this  court. 


APPEALS. 


Notice  of  appeal.(6) 

(Title  of  cause.) 
The  complainant  hereby  appeals  from  the  interlocutory  decree, 
[or,  "  an  order  made,  &c.,  and  from  the  whole  and  every  part 

Errors  and  Appeals  is  the  same  as  in  suggestion,  any  judge  who  concurred 
the  Court  of  Chancery,  by  petition  in  the  decision  thinks  proper  to  move 
and  notice,  «&c.  It  is  questionable  if  for  a  rehearing,  the  motion  will  be 
a  rehearing  would  ever  be  ordered  considered.  If  not  so  moved,  the 
unless  some  member  of  the  court,  who  rehearing  is  denied  as  of  course.  Pub- 
had  voted  against  the  party  applying,  lie  Schools  v.  Walker,  9  Wall.  603. 
moved  for  it.  King  v.  Ruckvian,  7  C.  (a)  Eehearings  in  equity,  after  a 
E.  Gr.  551 ;  Cassedy  v.  Bigelow,  12  C.  decree,  are  not  a  matter  of  right,  but 
E.  Gr.  505.  rest  in  the  sound  discretion  of  the 
The  following  indicates  the  practice  court.  By  the  English  practice  a 
on  the  subject  of  rehearing  in  the  deposit  for  costs  was  required.  Price 
United  States  Supreme  Court:  Where  v.  Dewhiirst,  4  Myl.  &  C.  282.  Also 
counsel  desire  to  have  a  case  reheard  by  the  practice  in  New  York.  1  Barb. 
they  may,  if  the  court  does  not,  on  its  Ch.  Pr.  359.  And  in  our  practice 
own  motion,  order  a  rehearing,  sub  the  rehearing  is  granted  on  such 
mit  without  argument  a  brief,  written  terms,  as  to  costs,  as  may  be  just, 
or  printed  petition  or  suggestion  of  the  (6)  All  persons  aggrieved  by  any 
point  or  points  which  they  think  im-  order  or  decree  of  the  Court  of  Chan- 
portant.     If,   upon  such    petition   or  eery  may  i^ppeal  from  the  same  or  any 


APPEALS. 


187 


thereof,"  or,  "  so  much  of  the  final  decree  {or  '  order ')  made  in 
this  court,  in  the  above-stated  cause,  as  declares  the  mortgage  of 
the  said  defendant,  ,  in  the  pleadings  in  the  cause  men- 


part  thereof  to  the  Court  of  Errors 
and  Appeals,  and  all  appeals,  except 
from  final  decrees,  shall  be  made 
within  forty  days  after  the  filing  of 
the  order  or  decree  appealed  from ; 
and  all  appeals  from  final  decrees  in 
the  said  court  shall  be  made  within 
three  years  after  making  such  decree, 
unless  a  notice  of  lis  pendens  has  been 
filed  in  the  county  clerk's  office, 
according  to  law,  in  which  cases  all 
appeals  from  final  decrees  shall  be 
made  within  three  months  after  filing 
the  decree  appealed  from ;  provided 
that  in  cases  where  the  person  entitled 
to  such  appeal  from  any  final  decree, 
be  an  infant,  feme  covert  or  insane  he 
or  she  shall  have  three  years  to  bring 
such  appeal  after  such  disability  shall 
be  removed.  Rev.,  "  Chancery,"  | 
114  ;  see  Green  v.  Blackivell,  5  Stew. 
Eq.  768.  The  word  "person"  applies 
to  corporations.  See  Rev.,  "Statutes," 
\,  9.  It  was  held  that  it  is  not  neces- 
sary that  the  person  who  appeals 
should  be  actually  a  party  to  the 
record,  provided  he  has  an  interest  in 
the  matter  which  may  be  afiected  by 
the  decree  or  order  appealed  from. 
This  decision  would  seem  to  be  appli- 
cable in  New  Jersey  from  the  lan- 
guage of  the  statute  quoted  above. 
See  Gifford  v.  Hort,  1  Sch.  &  Lef.  409. 
But  it  is  only  in  cases  in  which  the 
interest  of  the  person  wishing  to  ap- 
peal will  be  bound  by  the  decree  that 
an  appeal  will  be  permitted  at  the 
instance  of  a  party  not  on  the  record. 
Winchelsea  v.  Garetty,  1  ATyl.  &  Keen 
253.  He  may  file  a  supplemental  bill 
for  the  purpose  of  making  himself  a 
party  to  the  suit,  in  order  to  appeal 
from  it.    Gifford  v.  Hort,  supra.    The 


language  of  the  statute  above  cited  is 
similar  to  the  provision  of  the  consti- 
tution regulating  appeals  from  the 
Orphans'  Court  to  the  Prerogative 
Court.  Const,  Art.  VL,  §  4  (3) ;  see, 
also,  Rev.,  "Courts,"  §  58,  as  to  appeals 
from  the  Prerogative  Court ;  and  see, 
as  to  who  are  "  persons  aggi'ieved," 
Conover  v.  Walling,  2  MeCart.  167 ; 
Rorback  v.  Van  Blarcom,  5  C.  E.  Gr. 
461 ;  Raleigh  v.  Rogers,  10  C.  E.  Gr. 
507;  Swackhamer  v.  Kline,  10  C.  E. 
Gr.  503.  An  appeal  may  be  prose- 
cuted in  forma  pauperis,  in  a  proper 
case.  To  obtain  leave  to  do  so,  a  peti- 
tion must  be  presented,  accompanied 
by  an  affidavit,  substantially  in  the 
same  form  as  required  in  chancery. 
Embley  v.  Hunt,  March  T.,  1878 ;  see, 
also,  Rev.,  "Practice,"  U  307-309. 
It  should  state  special  reasons  why 
the  appeal  is  proper.  2  Dan.  Ch. 
Pr.  1482.  A  married  woman  appeal- 
ing in  forma  pauperis  prosecutes  the 
appeal  without  a  next  friend ;  but  a 
next  friend  is  required  for  an  infant. 
Id.  Where  the  complainant  in  the 
original  suit  died  after  decree,  it  was  . 
held  that  a  bill  of  revivor  will  lie, 
where  the  sole  design  of  reviving  the 
suit  is  that  an  appeal  may  be  taken 
from  the  decree,  if  the  parties  have 
the  right  of  appeal.  Peer  v.  Cookerow, 
2  Beas.  136;  Rogers  v.  Paterson,  4 
Paige  415.  Upon  the  death  of  a 
respondent  in  appeal,  an  order  mak- 
ing his  administrators  and  heirs-at- 
law  parties,  and  for  an  order  of  publi- 
cation, (some  of  the  heirs  residing  out 
of  this  state,)  according  to  the  practice 
in  chancery,  was  made.  McCurdy  v. 
Agnew,  4  Hal.  Ch.  728  ;  and  see,  as  to 
abatement,  &c.,  1  Barb.  Ch.  Pr.  417, 


188 


FORMS   OF   PLEADINGS. 


tioned,  to  be  an  existing  encumbrance  upon  the  mortgaged 
premises  prior  to  the  complainant's  mortgage,"  or  otherwise, 
stating  the  part  of  the  order  or  decree  complained  of  as  erroneous, 
as  the  case  may  be,)  to  the  Court  of  Errors  and  Appeals  in  the 

last  resort  in  all  causes. 

Solicitor  of  complainant. 
Dated,  &c.  Of  counsel. 

I  conceive  there  is  good  cause  for  appeal  in  the  above-stated 
cause.  Of  counsel  with  complainant. 


et  seq.  The  court  may  order  a  re- 
argument  while  a  cause  is  still  pend- 
ing, and  before  the  papers  have  been 
remitted.  But  after  the  judgment 
has  been  entered  and  the  papers 
remitted,  the  Court  of  Appeals  has  no 
further  jurisdiction  with  respect  to 
the  case.  King  v.  Ruckman,  7  C.  E. 
Gr.  551. 

The  appeal  to  be  filed  shall  state 
shortly  the  parts  of  the  order  or  de- 
cree complained  of  as  erroneous,  and 
shall  be  signed  by  counsel,  who  shall 
state  that  he  conceives  there  is  good 
cause  for  the  appeal.  Rule  151.  If 
the  party  appealing  from  a  final  de- 
cree shall,  within  ten  days  after  the 
filing  of  such  final  decree,  file  his 
appeal  with  the  clerk  of  the  Court  of 
Chancery,  process  shall  not  issue  on 
said  decree  without  the  order  of  said 
couit  or  of  the  Court  of  Appeals. 
Rule  150 ;  see  Schenck  v.  Conover,  2 
Beas.  31.  In  case  a  defendant  does 
not  appear  at  the  hearing  before  the 
Chancellor,  the  cause  having  been 
regularly  noticed  for  argument,  he 
cannot  appeal  from  the  decree  thus 
rendered  in  his  absence.  Townsend  v. 
Smith,    1  Beas.   350.     When   a   final 


decree  involves  the  merits  of  the 
case  settled  by  the  interlocutory  de- 
cree, an  appeal  from  the  final  decree 
brings  the  whole  case  before  the  court. 
Terhune  v.  Colion,  1  Beas.  312;  Crane 
v.  Be  Camp,  7  C.  E.  Gr.  614;  Becker 
V.  Ruckman,  1  Stew.  Eq.  614 ;  Clair  v. 
Terhune,  8  Stew.  Eq.  336.  The  general 
rule  is,  that  an  appeal  will  lie  from 
all  orders  either  granting,  refusing, 
sustaining  or  dissolving  injunctions. 
Morgan  v.  Rose,  7  C.  E.  Gr.  584; 
Chegary  v.  Schofield,  1  Hal.  Ch.  525. 
A  decree  appointing  a  receiver  may 
be  appealed  from.  Weissenborn  v. 
Sieghortner,  6  C.  E.  Gr.  482.  An 
order  refusing  to  ?et  aside  a  sale  upon 
an  application  based  on  the  illegality 
of  the  sale,  is  appealable.  Bank  of 
Metropolis  v  Sprague,  6  C.  E.  Gr. 
458.  There  can  be  no  appeal  from 
an  order  directing  process  to  bring  in 
the  parties  to  answer  for  an  alleged 
contempt.  Coryell  v.  Holcombe,  1 
Stock.  650.  The  fact  that  the  decree 
sought  to  be  appealed  from  has  been 
executed,  does  not  deprive  the  party 
of  his  right  of  appeal.  Peer  v.  Cooke- 
row,  1  McCart.  361. 


APPEALS.  189 

Affidavit  of  service  of  notice  of  appeal,  (a) 

State  of  New  Jersey,    \ 

county  of  ,    i 

,  being  duly  sworn,  says — that  on  the  day  of 

,  at  ,  he  served  the  within  notice,  {or,  "  the  notice 

hereto  annexed,"  or,  "  the  notice,  a  copy  of  which  is  hereto 
annexed,")  on  ,  the  defendant  in  this  cause,  *  by  delivering 

the  same,  {or,  "  a  copy  thereof,")  to  him  personally,  and  leaving 
the  same  with  him,  {or,  "  by  leaving  said  notice  at  his  residence 
with  ,  a  member  of  his  family,"  or,  "  by  delivering  the 

same  to  ,"  a  clerk  or  person  having  charge  of  the  office^ 

the  said  being  absent  at  the  time. 

Sworn,  &c.  {Signature.) 

Order  to  stay  proceedings  on  an  appeal  from  an 
interlocutory  decree.(A) 

{Title  of  cause.) 
This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant  {or  "  defendant,")  and  it  appearing  that 
the  complainant  {or  "  defendant ")  has  filed  an  appeal  from  the 
interlocutory  decree  made   in   this   cause  on  the  day  of 

last :  It  is,  on  this,  &c.,  ordered,  that  all  further  proceed- 
ings in  this  court  in  the  above  cause  be  stayed  pending  the  said 
appeal.(c) 

(a)  A  copy  of  the  foregoing  notice  (c)  The  court,  as  a  general  rule, 
of  appeal  shall  be  served  on  the  will  not  stay  the  execution  of  an  inter- 
solicitor  of  the  adverse  party,  if  he  locutory  decree  pending  an  appeal, 
has  prosecuted  or  defended  by  a  soli-  unless  its  execution  will  render  it  im- 
citor.  Rule  151.  It  is  the  practice  to  possible  to  set  the  appellant  right 
procure  a  copy  from  the  clerk,  and  to  again  in  case  he  is  successful  on  the 
make  service  of  the  notice  of  appeal  appeal.  Ratzer  v.  Ratzer,  2  Stew.  Eq. 
within  ten  days  after  the  filing  162.  An  appeal  from  a  decree  di- 
thereof.  recting  an  account  to  be  stated,  will 

{h)  An  appeal  from  an  interlocutory  not     stay     the     accounting.      Ibid. ; 

decree  or  order  shall  not  stay  proceed-  Schenck  v.  Conover,  2  Beas.  32 ;  Jewell 

ings  in  the  cause  without  an  order  of  v.  Dringer,  2  Slew.  Eq.  199.     In  con- 

the  Court  of  Chancery  or  of  the  Court  sidering   an   application   to   stay  the 

of  Appeals  for  that  purpose  first  had,  execution  of  an  interlocutory  decree 

which   shall    be   granted   upon   such  pending   an   appeal,  the   court  must 

terms  as  the  court  making  the  order  assume  the  decree  to  be  right.    Ratzer 

may  impose.     Pcule  149.  v.  Ratzer,  supra. 


190 


FORMS   OF   PLEADINGS. 


SUMMONS  AND  SEVERANCE  (a) 


Rule  to  show  cause,  &c. 

This  cause  beiDg  opened  to  the  court  by 


solicitor  and 


of  counsel  with  the  defendants  below,  {naming  them,)  on  motion 
to  strike  from  the  files  of  this  court  the  petition  of  appeal, 


(a)  It  is  a  certain  rule  that  all  the 
parties  to  the  suit  below  must  in  all 
cases  of  error  be  made  parties  also  in 
the  writ  of  error,  and  in  case  of  the 
death  of  a  party  he  must  be  named 
and  his  death  alleged  in  the  writ. 
Brewer  v.  Turner,  Sir.  233;  Cooper  v. 
Guiger,  Str.  606.  See  form  of  allega- 
tion in  writ  of  error  in  case  of  death, 
1  Arch.  Pr.  232. 

If,  therefore,  there  is  a  joint  judg- 
ment against  two  and  the  writ  is  laid 
ad  damnum  of  one  of  them  only,  it 
will  be  quashed  on  motion,  for  other- 
wise this  inconvenience  would  ensue, 
that  every  defendant  might  bring  a 
writ  of  error  by  himself,  and  by  that 
means  delay  the  plaintiff  from  having 
the  benefit  of  his  judgment,  though  it 
should  be  affirmed  once  or  oftener. 
1  Arch.  Pr.  232 ;  2  Sell.  Pr.  536.  If 
one,  therefore,  bring  error,  he  must  do 
it  in  the  name  of  all ;  and  if  after- 
wards any  of  the  others  refuse  to 
appear  upon  the  scire  facias  quare, 
&c.,  or  to  assign  errors  upon  the  rule 
given  for  that  purpose,  summons  and 
severance  lies;  and  the  court  will 
grant  the  other  plaintiff  in  error  time 
till  such  summons  and  severance  is 
effected.     Mod.  C.  40 ;   Yelv.  4. 

After  a  scire  facias  taken  out  and  a 
scire /eci  returned,  one  of  the  plaintiffs 
in  error  moved  for  time  to  assign 
errors  till  there  could  be  a  summons 
and  severance  of  the  other,  upon  afii- 
davits  that  the  other  execution  was  in 
the  interest  of  the  defendant  in  error 


and  would  not  join,  and  time  was 
given  accordingly.  Frescobaldi  v. 
Kinaston,  Sir.  783. 

Three  join  in  bringing  a  writ  of 
error ;  the  defendant  pleads  outlawry 
in  abatement  as  to  one  of  them,  but 
the  court  held  this  no  good  plea, 
because  they  are  all  compellable  to 
join.     Palm.  151. 

But  although  there  is  this  strictness 
in  all  the  parties  who  should  be 
plaintiffs  in  error  joining,  yet  it  does 
not  seem  to  hold  with  respect  to  the 
defendants  in  error,  for  where  one 
defendant  in  error  only  appeared  and 
sued  out  the  scire  facias  quare,  and 
plaintiff  assigned  errors,  it  was  deemed 
a  waiver  of  the  objection  that  the 
other  should  have  joined  ;  and  it  was 
said  that  the  reason  why  plaintiffs 
should  join  did  not  apply  to  defend- 
ants, viz.,  the  inconvenience  that 
would  arise  by  a  perpetual  delay  in 
execution  if  every  defendant  might 
bring  a  writ  of  error  by  himself. 
Knox  V.  Costello,  Burr.  1789. 

A  writ  of  error  was  quashed  because 
all  the  proper  parties  were  not 
plaintiffs.     Ld.  Raym.  71. 

But  if  the  defendant  in  error  pro- 
ceeds without  quashing  the  writ,  and 
judgment  is  affirmed,  he  can  only  sue 
out  execution  against  the  one  who  was 
party  to  the  writ ;  nor  can  he  do  that 
if  ihe  error  be  in  Exchequer  Cham- 
ber till  the  remittitur  is  sent  into 
King's  Bench.  Larochey.  Wasbrough, 
2  Burn.  &  E.  737. 


APPEALS.  191 

because  the  said  petition  has  been  irregularly  filed,  in  that  it 
names  and  joins  as  appellants  with  said  the  last-named 

parties  and  others,  against  their  will  and  without  their  consent ; 
and  the  matter  having  been  considered  by  the  court :  It  is 
ordered,  on  this  (date,)  that  the  said  appellant,  ,  have 

leave  to  summon  the  defendants,  (naming  them,)  by  an  immediate 
service  of  a  copy  of  this  order  on  said  parties  or  their  solicitors, 
to  show  cause,  on  the  (date,)  before  this  court,  at  the  state-house, 
in  the  city  of  Trenton,  why  they  and  each  of  them  shall  not  be 
joined  as  appellants  in  this  court  in  said  cause  on  appeal ;  and 
it  is  further  ordered,  that  in  case  all  or  any  of  the  said  defend- 
ants below  refuse  to  join  in  said  appeal  in  this  court  with  the 
said  ,  that  then  the  said  defendants  in  the  court  below,  as 

above  named,  be  and  they  shall  be  severed  from  the  said 
as  appellants  in  this  court ;  and  that  they,  the  said  defendants 
below,  (naming  them,)  be  regarded  and  stand  as  respondents  in 
the  above-stated  cause  on  appeal  in  this  court. 
On  motion  of 

(Name  of  solicitor  of  appellant.) 

Another  form  of  rule  to  show  cause.(a) 

This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  appellants,  and  it  appearing  that  has  filed  his 

petition  of  appeal  from  the  decree  of  the  Court  of  Chancery  in 
said  petition  mentioned,  and  has  joined  in  said  appeal 
and  ,  who   have   failed   to  appear  and   prosecute  said 

appeal :    It  is  (date)  ordered,  that  said  and  show 

cause  before  this  court,  on  (date,)  why  the  said  (appellants) 
should  not  be  severed  in  said  appeal,  and  said  should  not 

prosecute  the  appeal  alone ;  and  it  is  further  ordered,  that  this 

(a)  lostead  of  the  common-law  pro-  The   practice   indicated   above  ap- 

cess  of  summons,  the   practice   is   to  plies   to   cases   on   appeal    from    the 

take  and  serve  a  rule  to  show  cause,  Prerogative  Court  {Holcombe  v.  Sol- 

upon  those  who  failed  to  appear,  why  combe,   2   Stew.   Eg.   375),  and    from 

he  who  had  sued  out  the  writ  should  the  Court  of  Chancery.     See   record 

not  prosecute  it  alone.     Sheppard  v.  in   Johnson   v.   Paulson,  5   Stew.   Eq. 

Fenton,  4   Halst.  8;    Van  Buskirk  v.  390. 
Hoboken  &  N.  Y.  B.  B.  Co.,  2  Vr.  368. 


192  FOKMS   OF   PLEADINGS. 

rule  be  served  upon  said  and  within  five  days  from 

the  date  hereof.  On  motion  of 

{Name  of  solicitor.) 

Refusal  to  join. 

Under  the  rule  to  show  cause,  entered  in  the  above-entitled 
suit  on  the  part  of  ,  appellant,  at  the  present  term  of 

of  this  court,  the  following- named  persons,  to  wit,  {naming  them,) 
all  of  whom  are  defendants  in  this  cause  in  the  Court  of  Chan- 
cery, now  come  here  into  court  by  ,  their  solicitor,  in 
obedience  to  said  rule  to  show  cause,  and  say  that  they  have  not 
appealed  from  the  decree  made  by  the  Chancellor  in  this  cause, 
nor  from  any  part  thereof,  and  that  their  names  have  been  used 
as  appellants  in  the  petition  filed  in  this  court  by  the  said 
without  their  consent  and  against  their  will,  and  they 
hereby  refuse  to  join  in  the  said  appeal. 

Dated,  &c.  {Signature  of  solicitor.) 

Order  of  severance. 

It  appearing  to  the  court  that  the  order  of  this  court  hereto- 
fore made,  requiring  [naming  them)  to  show  cause,  on  this  [date,) 
why  they,  and  each  of  them,  should  not  be  joined  as  appellants 
in  this  court  in  said  cause  on  appeal,  has  been  duly  served,  and 
it  further  now  appearing  that  they  and  each  of  them  refuse  to 
join  in  the  said  appeal,  and  are  content  with  the  decree  below, 
and  desire  to  be  regarded  as  respondents  in  this  cause  in  this 
court :  It  is  now,  on  this  {date,)  ordered  by  the  said  court  that 
the  said  {naming  them)  be  and  they  are  hereby  severed  from  the 
said  in   the  prosecution  of  said   appeal,  and   that   they 

stand  and  be  regarded  as  respondents  in  the  prosecution  thereof, 
together  with  ,  who  were  complainants  below,  and  that 

the  said  have  leave  to  amend,  and  to  file  an  amended 

petition  of  appeal  in  this  cause  accordingly. 
On  motion  of 

{Name  of  solicitor  of  appellant.) 


APPEALS.  193 

Ancient  form  of  writ  of  summons.(a) 

To,  &c. — Greeting: 

Since  we  lately  have  given  in  charge  to  our  justices  assigned 
for  holding  pleas  before  us,  our  writ  of  error,  setting  forth  that 
in  the  record  and  process  and  also  in  the  giving  of  judgment 
of  the  plaint  which  was  in  our  court  before  our  justices  of  the 
bench  by  our  writ,  between  A  C  and  R  S  and  W  A,  executors 
of  the  will  of  H  P,  lately  of,  &c.,  soldier,  manifest  error  hath 
intervened  in  this,  that  the  said  R  and  W  should  render  to  the 
plaintiff,  A  C,  fifty  pounds,  to  the  great  damage  of  them,  the 
said  R  and  W,  as  we  from  their  complaint  are  informed ;  we 
being  willing  that  the  error,  if  any  there  be,  should  be  corrected 
in  due  manner,  and  that  full  and  speedy  justice  should  be  done 
to  the  parties  aforesaid  in  this  behalf,  have  caused  for  certain 
reasons  the  record  and  process  to  come  before  us  and  to  remain 
before  us,  and  have  given  in  charge  to  said  justices,  that  the 
record  and  process  aforesaid  being  inspected,  they  should  further 
cause  to  be  done  thereupon  for  correcting  that  error  what  of 
right  and  according  to  the  law  and  custom  of  our  realm  of 
England  ought  to  be  done ;  whereupon  the  said  R  and  W,  for 
prosecuting  the  writ  of  error  aforesaid  in  our  said  court  before 
us  having  been  solemnly  called,  the  said  W  in  his  own  proper 
person  in  our  court  before  us  appeared,  and  the  said  R  made 
default;  for  which  cause  the  said  W  in  our  said  court  prays 
our  writ  to  be  directed  to  you  to  summon  the  aforesaid  R,  that 
he  be  before  us  to  prosecute,  together  with  the  said  W,  against 
the  aforesaid  A,  the  writ  of  error  aforesaid,  which  by  us  is 
granted  to  him ;  therefore  we  command  you  that  you  summon 
by  good  summoners  the  aforesaid  R,  that  he  be  before  us  at  a 
day,  &c.,  wherever,  &c.,  to  prosecute,  if  he  shall  wish,  together 
with  the  said  W,  the  writ  of  error  aforesaid,  and  further  to  do 
and  receive  what  our  said  court  before  us  shall  consider  in  this 
behalf;  and  have  you  there  the  names  of  the  summoners  and 
this  writ.     Witness,  &c. 

(a)  The  form  of  writ  of  summons  as  into  English,  is  given  above.  See 
anciently  used  in  England,  translated       Thes.  Brev.  301. 

N 


194 


FORMS  OF   PLEADINGS. 


Order  for  execution  to  issue,  notwithstanding  an 
appeal. (a) 

{Title  of  cau8e.) 

This  matter  being  opened  to  the  court  by,  &c.,  and  it  appear- 
ing that  due  notice  of  the  application  for  this  order  was  given 
to  the  solicitor  of  the  (adverse  party:)  It  is,  on  this,  &c.,  ordered, 
that  a  writ  of  fieri  facias  do  issue,  pursuant  to  the  decree  in  this 
cause,  nothwithstanding  the  appeal  therein. 


Petition  of  appeal  to  the  Court  of  Appeals. (6) 

To  the  Honorable  the  Court  of  Errors  and  Appeals  in  the  last 
resort  in  all  causes  : 
The   petition  of  ,  the   appellant   in   the  above-stated 

cause,  respectfully   shows   that   your   petitioner   finds   himself 


(a)  Seerule  150.  Whether  the  party 
shall  be  permitted  to  proceed,  not- 
withstanding the  appeal,  rests  in  the 
discretion  of  the  court,  and  if  the  stay 
of  execution  is  unnecessary  to  protect 
the  rights  of  the  aj)pellant  under  the 
appeal,  and  must  operate  prejudicially 
to  the  complainant,  the  court  ought 
not  to  interfere  to  prevent  the  issuing 
of  the  execution.  This  practice  is  in 
accordance  with  that  of  the  English 
courts  of  equity,  which  we  follow 
except  so  far  as  it  may  be  modified  by 
statute  or  rule,  or  by  the  established 
practice  in  our  own  court,  as  well  as 
by  the  practice  in  chancery  of  New 
Jersey.  Schenck  v.  Conover,  2  Beas.  31. 
The  court  may  continue  an  injunction 
pending  an  appeal  from  a  decree  of 
dismissal.  Jewett  v.  Dringer,  9  Stew. 
Eq.  199.  In  Penn  Mut.  Ins.  Co.  v. 
Sempie,  where  an  injunction  was  ap- 
plied for  pending  an  appeal  restrain- 
ing the  sale  of  certain  machinery,  and 
to  have  a  receiver  therefor  appointed, 
the  Chancellor  held  that  the  defend- 
ant should  have  security.  Where 
respondent  is  entitled  to  execution. 


and  the  appellant  applies  for  fi.  stay  in 
the  appellate  court,  the  stay  will  not 
usually  be  granted  without  security  to 
the  respondent.    11  Stev.  Eq  314. 

(6)  The  party  appealing  from  a 
final  decree  shall  present  his  petition 
of  appeal  to  the  Court  of  Appeals  at 
the  next  term  after  pronouncing  the 
said  final  decree,  and  on  the  first  or 
second  day  thereof;  and  in  default  of 
so  doing,  such  appeal  shall  be  deemed 
to  have  been  waived,  and  the  cause 
may  proceed  as  if  no  appeal  had  been 
filed.  Rule  152.  In  the  petition  of 
appeal  shall  be  briefly  stated  the  order 
or  decree  complained  of,  and  the 
grounds  of  appeal ;  and  the  party  a p 
pealing  shall  serve  a  copy  thereof  on 
the  solicitor  of  the  adverse  party,  if 
he  has  a  solicitor,  or  if  he  has  not, 
then  on  the  adverse  party,  if  to  be 
found  in  this  state,  within  thirty  days 
after  filing  the  said  petition ;  and 
shall  also,  within  the  same  time,  de- 
posit with  the  clerk  in  chancery  one 
hundred  dollars  to  answer  the  costs  of 
the  appeal,  if  the  appellant  shall  not 
prosecute  the  same  to  effect;   and  in 


APPEALS.  195 

aggrieved  by  a  final  decree  {or  "  an  order,")  made  iu  the  Court 
of  Chancery  by  his  Honor  ,  Chancellor  of  New  Jersey, 

bearing  date  the  day  of  ,  in  the  year,  &c.,  wherein 

the  said  was  complainant,  and  the  said  and 

were  defendants,  in  this  respect,  to  wit :  that  the  said  decree 
adjudges  that,  &c.,  {reciting  the  decree  or  order,  or  such  part  of 
it  as  is  complained  of  a^  erroneous.)  And  your  petitioner  hum- 
bly appeals  from  that  part  of  the  decree  {or  "  order ")  of  the 
Chancellor  which  decrees  (or  "orders")  as  aforesaid,  upon  the 
ground  that  the  same  is  erroneous,  for  that,  &c.,  {as  the  case  may 
be.)  Your  petitioner  therefore  prays  that  the  said  decree  {or 
"  order  ")  of  the  said  Chancellor  may  be,  in  the  particulars  afore- 
said, reversed,  set  aside  and  for  nothing  holden.  And  that  your 
petitioner  may  have  such  relief  in  the  premises  as  to  this  honor- 
able court  shall  seem  meet. 

Solicitor  of  appellant. 

Of  counsel  icith  appellant. 

Answer  to  petition  of  appeal.(a) 

New  Jersey  Court  of  Errors  and  Appeals. 

Between  ^ 

Appellant,         ! 

and  I 

Respondent,     j 

The  answer  of  the  above-named  respondent  to  the  petition  of 
appeal  of  the  above-named  appellant. 
This  respondent,  not  acknowledging  all  or  any  of  the  matters 
which  in  the  said  petition  of  appeal  are  contained  to  be  true, 

default  of  serving  a  copy  of  the  peti-  answer  to  the  petition  of  appeal  within 

tion,   and    making    such    deposit    as  thirty  days  after  service  of  a  copy  of 

aforesaid,  proceedings  may  be  had  on  the  said  petition  and  the  making  of 

the  order  or  decree  appealed  from,  as  the  deposit  required  by  rule  19;  and 

if  such  appeal  had  not  been  made ;  in  default  thereof,  the  appellant  may 

and  the  said  appeal  may  be  dismissed  enter  a  rule  as  of  course,  in  vacation 

by  the  Court  of  Appeals,  with  costs.  or  term  time,  with  the  clerk  of  the 

Rule  16,  Court  of  Appeals.     The  ap-  Court  of  Appeals,  for  the  hearing  of 

pellant  in  his  petition  of  appeal  should  the   appeal,  and   may   bring   on   the 

state  his  case  fully  and  the  particulars  same,   by    giving    and    filing    notice 

in  which  he  is  aggrieved.     Jackson  v.  thereof,   as    required    by    the    rules. 

People's  Bank,  1  Stock.  205.  Bute  21,  Court  of  Appeals. 
(a)  The  respondent  shall   file   an 


196  FOEMS   OF   PLEADINGS. 

for  answer  thereto,  nevertheless,  says  and  admits,  that  a  decree 
{or  "  an  order  ")  was,  on  the  day  of  last  past,  made 

and  entered  in  the  Court  of  Chancery,  in  the  cause  for  that  pur- 
pose mentioned  in  the  said  petition,  as  is  therein  stated ;  but  as 
to  the  substance  and  form  thereof,  this  respondent  prays  to  refer 
thereto  when  the  same  shall  be  produced.  And  this  respondent 
is  advised  and  believes,  that  the  said  decree  {or  "order")  is 
agreeable  to  equity,  and  he  prays  that  the  same  may  be  affirmed, 
with  costs  to  be  adjudged  to  this  respondent. 

{Signature  of  solicitor  and  counsel.) 

Notice  of  argument  in  Court  of  Appeals. (a) 

{Title  of  cause.) 
Sir — Take  notice  that   the  argument  of  the  appeal    in    the 
above  cause  will  be  brought  on  at  the  next  term  of  the  Court  of 
Errors  and  Appeals,  to  be  held  at  the  state-house,  at  Trenton, 
on  Tuesday,  the  day  of  next,  at  eleven  o'clock 

A.  M.,  or  as  soon  thereafter  as  counsel  can  be  heard. 

{Signature  of  solicitor.) 
To  ,  Solicitor  of  re8pondent.(6) 

(a)  All  causes  on   appeal   may  be  (b)  The   solicitor   for   the   adverse 

brought    on   and    heard    on    twenty  party,  if  any,  in  the  court  below,  shall 

days'  notice  thereof  in   writing,  and  be    considered    as    solicitor    for    the 

on  filing  a  copy  or  abstract  of  such  respondent    on   appeal ;    and   notices 

notice  in   the  office  of  the   clerk,  at  and   papers  served  on   him  shall   be 

least   five  days   previous   to  the  first  deemed  good  service  until  the  respond- 

day  of  the  term  at  which  such  cause  is  ent   in   appeal   shall    give   notice   in 

to  be  set  down  for  hearing.     Rule  11.  writing   to   the   appellant   in   appeal 

All  causes  shall  be  noticed  for  hearing  that  he  has  employed  another  solicitor, 

on  the  first  day  of  the  term,  if  at  issue  naming   in   such    notice  the  solicitor 

long  enough  to  admit  of  such  notice ;  employed,  or  until  appearance  entered 

if  not,  then  they  may  be  noticed  for  a  by  a  new  solicitor.     Bule  2. 

day  in  term  not  later  than  the  twen-  Order  of  the  hearing.    The  neces- 

tieth  day.     Mule  12.     When  a  cause  sary  papers  in  the  cause  shall  be  read 

is  regularly  noticed  for  hearing,  if  the  without  explanation  or  comment,  after 

appellant   shall   not  appear  to  argue  wliich   one   of    the   counsel    for    the 

the   appeal,  the  decree  of  the   court  appellant  shall  open  the  cause ;  then 

below  shall  be  affirmed,  with  costs ;  two   counsel   for    the   opposite   party 

and  if  the  respondent  fails  to  appear,  may   be   heard   in   answer,   and   one 

the  appellant  may  proceed  ex  parte.  counsel   only  for   the   opening   party 

Itule  27.                                                   .  shall  be  allowed  to  reply ;  but  in  case 


APPEALS. 


197 


Printed  cases  and  briefs  in  Court  of  Appeals. (a) 
The  "points  or  brief  will  of  course  vary  in  every  case.  They  are 
similar  in  form  to  the  points  on  a  hearing  in  the  Court  of  Chan- 
cery. The  requirements  of  the  rules  in  regard  to  them  will  he 
found  in  the  notes. 


of  an  appeal  from  an  order  or  decree 
of  the  Court  of  Chancery,  in  a  cause 
where  there  are  several  defendants 
who  have  separate  and  distinct  inter- 
ests, and  who  have  different  counsel 
concerned  for  them,  the  counsel  for 
the  respective  defendants  shall  be 
heard  in  such  order  as  the  court  may 
direct,  but  not  more  than  two  counsel 
shall  be  allowed  to  argue  for  any  one 
defendant ;  and  if  more  than  two 
counsel  answer  for  the  defendant,  in 
that  case  two  counsel  may  be  heard  in 
reply.    Rule  28. 

In  the  argument  of  all  causes, 
there  shall  be  allowed  to  each  side, 
when  but  one  counsel  is  to  be  heard 
on  either  side,  the  period  of  one 
hour ;  when  two  or  more  counsel  are 
to  be  heard  on  each  side,  the  period 
of  two  hours,  unless  express  permis- 
sion shall  be  given  for  a  longer  speci- 
fied time  before  the  argument  of  the 
cause  is  commenced,  and  the  argu- 
ments shall  then  be  limited  to  the 
time  thus  allowed.  The  presiding 
officer  shall  in  all  cases  enforce  a 
strict  observance  of  this  rule.  On  all 
arguments  arising  incidentally  before 
the  court,  or  not  before  provided  for, 
one  counsel  shall  be  heard  in  opening 
the  matters  in  question  or  points,  then 
two  counsel  for  the  opposite  party  may 
answer,  and  one  counsel  only  for  the 
opening  yarty  shall  be  allowed  to 
reply.     Rale  29. 

(a)  The  appellant  *  *  *  shall 
provide  a  state  of  the  case,  containing 
the  pleadings,  proofs  and  order  or 
■decree  in  chancery,  and  the  petition  of 


appeal  and  answer  on  appeal,  *  *  * 
and  also  the  reasons  given  in  the  court 
below  for  the  decree  or  order  *  *  * 
complained  of,  (or  an  abridgment 
thereof,  in  case  one  can  be  agreed  on 
by  the  parties  or  their  counsel,)  which 
shall  be  printed  on  good  paper,  with 
a  large  margin,  with  pages  numbered 
consecutively,  and  every  tenth  line  of 
each  page  numbered.  Three  copies 
of  the  state  of  the  case  shall  be  fur- 
nished to  each  adverse  party,  at  least 
twenty  days  before  the  day  noticed  for 
argument,  and  a  copy  shall,  previous 
to  the  hearing,  be  delivered  to  each 
member  of  the  court,  and  to  the  clerk, 
to  be  filed.     Rule  17. 

It  is  not  necessary  to  print  the 
pleadings  and  evidence  in  full.  The 
formal  parts  of  the  bill  may  always 
be  advantageously  omitted,  and  the 
pleadings  in  most  cases  materially 
abridged.  Cooper  v.  Cooper,  1  Stock. 
655. 

Each  party  shall  furnish  to  each 
member  of  the  court  and  to  each  of 
the  opposite  counsel,  in  print,  at  the 
commencement  of  the  argument,  the 
points  upon  which  he  means  to  rely, 
with  a  citation  of  all  the  authorities 
to  be  used  in  the  argument,  and  cases 
may  be  submitted  on  such  arguments. 
Rule  18.  When  an  appeal  from  an 
order  or  decree  shall  be  heard,  the 
Chancellor  shall  inform  the  court,  in 
writing,  of  the  reasons  for  his  order  or 
decree,  but  he  shall  not  sit  as  a  mem- 
ber, or  have  a  voice,  in  the  hearing  or 
final  sentence.  Const.  N.  J.,  Art.  VI., 
?  2,  •"  5 ;  Rev.,  "  Courts,"  |  9. 


198 


FORMS   OF   PLEADINGS. 


Remittitur  on  affirmance.(a) 

New  Jersey  Court  of  Errors  and  Appeals. 

Term,  18 

Between  ^ 

Appellant,         I 

and  I 

Eespondent.      J 

This  cause  having  been  brought  to  a  hearing,  on  an  appeal 
from  the  Court  of  Chancery,  at  the  last  term  of  this  court, 

{or  as  the  case  may  be,)  and  ,  of  counsel  with  the  appel- 


(a)  By  the  English  practice,  the 
ordering  or  decretal  part  may  be  fully 
recited,  if  the  petition  of  appeal  com- 
plains of  the  whole  order  or  decree ; 
but  if  such  petition  complains  only 
of  part  of  the  order  or  decree,  then  no 
more  thereof  is  to  be  recited  than  is 
complained  of,  or  what  necessarily 
relates  thereto;  nor  is  more  of  such 
petition  to  be  recited  than  the  points 
complained  of,  and  no  recital  is  to  be 
made  of  the  reasons  or  allegations  of 
counsel  therein  assigned.  But  in 
cases  where  the  decree  or  order  is 
varied,  the  scope  and  substance  of  so 
much  of  the  proceedings  only  as  is 
material  and  tending  to  the  points 
varied,  is  to  be  recited ;  and  the 
recital  is  to  be  made  in  the  most  con- 
cise manner.  Beames'  Orders  381 ; 
Seaton  on  Decrees  *390. 

When  a  cause  has  been  decided  by 
final  decree  or  order  of  the  Court  of 
Errors  and  Appeals,  it  is  the  duty  of 
the  clerk  of  that  court  to  return  to  the 
clerk  of  the  Court  of  Chancery  all  the 
papers  which  have  been  received 
from  him,  for  which  he  shall  take  a 
receipt,  together  with  a  copy  of  the 
order  or  decree^  of  the  Court  of  Ap- 
peals (called  the  remittitur),  which 
order  or  decree  it  is  made  the  duty  of 
the  Court  of  Chancery  to  carry  into 
effect.     Bev.,    "Courts,"    ?    15.     The 


court  renders  such  a  decree  as  chan- 
cery ought  to  have  made;  reverses 
what  is  wrong ;  decrees  what  is  right, 
and  models  the  relief  according  to  its 
own  views  of  the  ends  of  justice  and 
the  exigencies  of  the  case.  Where 
the  Court  of  Errors  and  Appeals  has 
rendered  a  decree  after  hearing  on 
the  merits  and  the  decree  has  been 
entered  in  the  minutes  in  accordance 
Avith  the  views  of  the  court,  and  the 
record  has  been  regularly  remitted  to 
the  court  below,  it  has  no  further 
jurisdiction  of  the  case.  Putnam  v. 
Clark,  8  Slew.  Eq.  145. 

The  prevailing  party  recovers  costs 
in  the  Court  of  Errors  and  Appeals, 
in  which  is  included  cost  of  printing, 
unless  the  court  shall  in  express  terms 
adjudge  to  the  contrary.  Rule  34. 
The  payment  of  the  costs  which  are 
awarded  by  the  Court  of  Errors  and 
Appeals,  upon  appeal,  is  enforced  by 
the  Court  of  Chancery  according  to 
the  practice  of  that  court.  See  Dan. 
Ch.  Pr.  1504 

A  writ  of  error  to  remove  a  cause 
to  the  Supreme  Court  of  the  United 
States,  may  be  directed  to  the  Court  of 
Errors  and  Appeals  where  the  judg- 
ment was  rendered,  if  the  record  still 
remains  there,  or  to  the  court  below, 
if  it  has  been  remitted.  Brumagim  v.. 
Chen;  6  C.  E.  Or.  180. 


APPEALS.  199 

lant,  and  ,  of  counsel  with  the  respondent,  having  been 

heard,  and  the  questions  brought  up  by  said  appeal  having  been 
duly  considered :  It  is,  on  this,  &c.,  ordered,  adjudged  and 
decreed,  that  the  decree  {or  "  order  ")  of  the  Court  of  Chancery, 
made  on  the  day  of  ,18       ,  which  *  is  appealed 

from  by  the  appellant,  be  and  the  same  is  hereby  **  in  all  things 
affirmed,  with  costs  of  appeal  to  be  paid  by  the  appellant,  {oVy^ 
"  with  costs  in  this  court  and  in  the  Court  of  Chancery,  to  be 
paid  by  the  appellant,")  and  that  the  petition  of  appeal  be  dis- 
missed. And  it  is  further  ordered,  that  the  record  be  remitted 
to  the  Court  of  Chancery  to  proceed  further  thereon  according 
to  law  and  the  practice  of  said  court. 
On  motion  of 

Solicitor  of  respondent. 

(Certificate  of  clerk  of  Court  of  Appeals,  under  his  seal,  to  be 
annexed.) 

Remittitur  on  reversal.  As  in  preceding  form  to  *,  then, 
adjudged  (reciting  the  finding  of  the  court,  if  it  be  special;  and 
then,  be  and  the  same  is  hereby  reversed,  f  set  aside  and  for 
nothing  holden,  with  costs  of  appeal  to  be  paid  by  the  respondent, 
{or,  "  with  costs  both  in  this  court  and  in  the  Court  of  Chan- 
cery, to  be  paid,"  &c.)  And  it  is  further  ordered,  that  the 
record  and  proceedings  be  remitted  to  the  Court  of  Chancery,  to 
the  end  that  this  decree  may  be  carried  into  execution,  {or, 
after  f,  "  with  costs  of  appeal  to  be  paid  by  the  respondent,") 
and  that  a  decree  be  entered  in  the  Court  of  Chancery,  for  the 
complainant  therein,  for  (amount,)  with  the  costs  taxed  in  that 
court,  {or,  reciting  the  directions  of  the  court,  as  the  case  may  be. 
Conclude  as  above.) 

On  motion  of,  &c. 

Decree  of  reversal  in  chancery  on  remittitur. (a) 

{Title  of  cause.) 
Upon  opening  the  matter  this  day  to  the  court  by  ,  of 

counsel  with  (the  appellant  in  the  Court  of  Appeals,)  and  it  ap- 

(a)  In  some  cases  the  appellate  the  decree  appealed  from,  will  give 
court,  instead  of  alBrming  or  reversing      directions  to  the  court  below  to  rectify 


200 


FORMS   OF   PLEADINGS. 


pearing  that  said  filed  an  appeal  from  the  decree  made  in 

this  cause,  {or,  if  an  order  or  interlocutory  decree  has  been  ap- 
pealed from,  say  here,  instead  of  "  decree,'^  "  order,"  or,  "  inter- 
locutory decree  filed  in  this  cause,")  on  the  day  of  , 
18  ,  to  the  Court  of  Errors  and  Appeals  in  the  last  resort ; 
and  that  the  said  appeal  has  been  determined  by  the  said  Court 
of  Appeals,  and  the  proceedings  have  been  remitted  to  this  court 
to  proceed  further  thereon  according  to  law ;  and  on  reading 
the  remittitur  from  the  said  Court  of  Appeals,  whereby  it  ap- 
pears that  *  it  was  ordered  and  decreed  by  said  court  that  the 
said  decree  {or  "  order ")  of  the  Chancellor  be  in  all  things 
reversed,  set  aside  and  for  nothing  holden,  with  costs  to  be  paid 
by  the  defendants,  in  this  court,  to  the  complainant,  (or  vice 
versa:)  It  is  thereupon,  on  this,  &c.,  on  motion  as  aforesaid, 
ordered,  that  the  decree  of  the  said  Court  of  Appeals  be  and  the 
same  is  hereby  made  the  decree  of  this  court ;  and  it  is  further 
ordered,  that  an  execution  issue  out  of  this  court  for  the  said 
costs,  according  to  the  practice  of  this  court. 


it.  In  such  cases,  and  in  cases  where 
the  appellate  court  reverses  the  de- 
cree, the  order  or  decree  of  the  appel- 
late court  must  be  made  the  order  or 
decree  of  the  Court  of  Chancery. 
AWy-Oen.  v.  Scotl,  1  Ves.  419.  Where 
a  decree  of  the  Court  of  Chancery  was 
aflBrmed  by  consent,  it  was  moved  to 
make  the  judgment  of  the  Lords  an 
order  of  the  Court  of  Chancery,  but 
Lord  Hardwicke  doubted  whether 
such  a  thing  was  ever  done.  Id.  419 
It  cannot,  under  any  circumstances,  be 
necessary,  where  a  decree  is  simply 
affirmed,  unless  the  proceedings  under 
it  have  been  suspended  pending  the 
appeal.  2  Dan.  Ch.  Pr.  1503.  In 
practice  in  New  Jersey,  no  order  is 
entered  on  a  remittitur  simply  affirm- 
ing the  decree  of  the  Court  of  Chan- 
cery, but  an  order  to  make  a  decree  of 
the  appellate  court  the  decree  of  the 
Court  of  Chancery  may,  by  the  Eng- 
lish practice,  [and  a  like  practice  pre- 


vails in  New  Jersey,]  be  obtained  of 
course,  on  motion,  upon  the  produc- 
tion of  the  remittitur  from  the  appel- 
late court.  Man  v.  Ricketts,  3  De  G. 
&  S  446.  This  decree  or  order  be- 
comes the  law  of  the  case,  and  care 
should  be  taken  in  drawing  it  up  that 
it  embrace  all  the  points  determined 
where  the  decree  is  modified  or 
reversed,  that  the  court  below  may 
know  with  precision  the  directions  of 
the  court  above.  On  presenting  the 
remittitur  and  on  special  motion,  with- 
out notice,  the  Court  of  Chancery  will 
grant  an  order  or  decree  to  be  entered 
on  filing  the  remittitiLr  pursuant  to  and 
in  the  terms  of  the  order  of  the  court 
above.  If  the  appeal  was  from  an 
interlocutory  order,  and  the  Court  of 
Appeals  had  not  disposed  of  the  whole 
subject-matter,  the  proceedings  are 
resumed  at  the  stage  of  the  cause  when 
the  appeal  was  taken. 


APPEALS.  201 

Order  for  execution  for  costs  on  affirmance  in  Court 

of  Appeals^t^) 

{Title  of  cause.) 

Upon  opening  this  matter,  &c.,  {proceed  substantially  as  in 
foregoing  form  to  *,  then,)  the  decree  of  the  Court  of  Chancery 
appealed  from,  (in  part,)  was  in  all  things  affirmed,  (or,  "affirmed 
as  to  the  parts  thereof  appealed  from,")  with  costs  in  the  said 
Court  of  Appeals  and  in  this  court,  to  be  paid  by  the  said 
{appellant;)  and  it  further  appearing,  by  affidavit,  that  a  copy 
of  the  said  decree  of  this  court,  and  of  the  remittitur  from  the 
Court  of  Appeals,  and  of  the  said  taxed  bills  of  costs,  has  been 
duly  served  upon  the  said  {appellant,)  and  that  he  has  neglected 
and  refused  to  pay  the  said  costs :  It  is,  on  this,  etc.,  ordered, 
that  an  execution  forthwith  issue  out  of  this  court  for  the  said 
costs,  together  with  the  costs  of  this  order  and  of  said  writ. 

Order  to  pay  over  money  deposited  on  an  appeal.(6) 

{Title  of  cause.) 

Upon  opening  the  matter  this  day,  by  ,  of  counsel  with 

,  and  it  appearing  to  the  court  that  the  said  ,  on 

filing  an  appeal  from  the  decree  made  in  this  cause  to  the  Court 

of  Errors  and  Appeals  in  the  last  resort,  deposited  with  the  clerk 

of  this  court  the  sum  of  one  hundred  dollars,  pursuant  to  the 

(a)  It   is   in   the  discretion  of  the  commissions  of  the  clerk.     In  case  of 

Court  of  Errors  and  Appeals,  in  cases  an  affirmance,  the  clerk  will  draw  an 

of  appeal  from  a  decree  or  order  of  order  in  one  of  the  forms  indicated 

the  Chancellor,  to  award  costs  or  not.  above,   according    to    the    facts,   and 

Rev.,  "  Courtg,"  I  13.     The  prevailing  present  the  same  to  the  Chancellor, 

party  shall  be  considered  as  recover-  who   will    sign    it    on   mere   motion 

ing  costs  in  this  court,  in  which  shall  ex  parte.     Where  the  party  appealing 

be  included  costs  of  printing,  unless  is  liable  for  costs  in  the  same  suit  in 

the  court  shall,  in  express  terms,  ad-  chancery,  the   Chancellor,  will   in   a 

judge  to  the  contrary.     Rule  34.  proper  case,  but  not  usually  without 

(6)  No  petition  is  necessary  to  ob-  notice,  on  the  application  of  the  party 

tain    money    deposited    in    court    to  to  whom  such  costs  have  been  awarded, 

answer  the  costs  of  appeal.     In  case  direct  in  the  order  that  the  remainder 

of  a  reversal,  the  party  making  the  of  the  deposit,  or  so  much  thereof  as 

deposit  will  be  entitled  to  the  return  may  be  necessary,  be  applied  to  the 

of  his  money,  with  interest  at  the  rate  payment  of  such  costs. 
-allowed  by  the  court,  less  the  lawful 


202  FORMS   OF   PLEADINGS.. 

rules  and  practice  of  the  said  court,  to  answer  the  costs  of  said 
appeal,  and  that  the  said  appeal  has  been  determined  by  the  said 
Court  of  Appeals,  and  that  the  proceedings  have  been  remitted 
to  this  court,  to  proceed  further  thereon  according  to  law ;  and 
it  appearing  to  this  court  that  *  there  is  no  claim  on  the  said 
sum  for  costs  in  the  Court  of  Errors  and  Appeals,  (or,  after  *, 
say,  "  there  is  due  to  the  clerk  of  the  said  Court  of  Errors  and 
Appeals,  for  his  costs,  the  sum  of  ,  and  to  {the  respondent 

in  said  appeal)  for  his  costs,  the  sum  of  :  It  is,  on  this, 

&c.,  ordered,  that  the  clerk  of  this  court,  after  deducting  his 
lawful  commissions  on  said  deposit,  do  forthwith  pay  to  the  said 
clerk  of  the  Court  of  Errors  and  Appeals,  and  to  the  said 
(respondent)  or  to  his  solicitor,  said  sums  of  money  respectively, 
and  to  the  solicitor  of  said  f  (appellant)  the  remainder  of  said 
sum  of  one  hundred  dollars,  together  with  the  accumulations 
thereon,  according  to  the  rule  of  this  court,  (or,  if  the  respondent 
be  entitled  to  costs  in  the  Court  of  Chancery,  after  f  say,  "  (the 
respondent)  the  remainder  of  the  said  moneys  to  be  applied,  so 
far  as  necessary,  towards  the  payment  of  his  costs  in  this  court.") 


EXECUTION  OF  DECREE.(a) 

(In  case  the  purchaser  at  the  sheriff's  or  master's  sale  is  denied 
possession  of  the  premises,  he  will  proceed  by  serving  upon  the 
party  in  possession  the  following :) 

(a)  After   sale   on  foreclosure,  the  And  to  the  assignee  of  a  purchaser, 

court  will  compel  the  mortgagor,  or  Elkings  v.  Murray,  2  Stew.  Eq.  388. 

any  person  who  has  come  into  posses-  It  can  only  issue  against  persons  who 

sion  under  him  pending  the  suit,  or  are  parties  to  the  suit,  or  who  come 

whose  title  is  not  superior  to  his,  to  into   possession  under   the  defendant 

deliver  up  the  possession  of  the  prem-  after  its  commencement.     Blauvelt  v. 

ises,  and  will  not  drive  the  purchaser  Smith,  7    C  E.  Gr.  31.     The  power 

to  an  action  of  ejectment.     Schenck  v.  rests  in   the  sound   discretion  of  the 

Conover,  2  Beas.  220 ;  Thomas  v.  De  court.    It  will  never  be  exercised  in  a 

Baum,  1  McCart.  37.     And  this  assist-  case  of  doubt,  nor,  under  color  of  its 

ance  will  be  extended  to  a  stranger  exercise,  will  a  question  of  legal  title 

to  the  record  purchasing  at  such  sale,  be  tried.     Schenck  v.  Conover,  supra; 

as  well   as   to  the  mortgagee.     Ibid.  Van  Meter  v.  Borden,  10   C  E.  Gr. 


EXECUTION   OF   DECREE.  203 

Notice  and  demand  of  possession.(a) 
To 

Sir — Immediate  possession  is  hereby  demanded  of  the  [here 
describe  the  premises,)  being  the  same  premises  granted  and  con- 
veyed to  me  in  fee  by  ,  sheriff  of  the  county  of  ,  by 
deed  herewith  shown,  and  dated  the  day  of  ,18  , 
sold  by  him  and  purchased  by  me  at  sheriflF's  sale  by  virtue  of  a 
writ  of  fieri  facias,  issued  out  of  the  Court  of  Chancery  of  this 
state,  in  a  suit  wherein  was  complainant,  and  you,  , 
("and  others")  were  defendants,  for  the  foreclosure  and  sale  of 
said  premises,  and  I  do  hereby  authorize  ,  the  bearer  of 
this  notice,  to  take  and  receive  the  possession  of  said  premises 
for  me. 

Dated,  &c.  (Signature.) 

Proof  of  service  of  notice.(6)     New  Jersey,  ss. —  , 

being  duly  sworn,  saith — that  on  the  day  of  last, 

this  deponent  personally  demanded  of  the  defendant,  , 

the  possession  of  the  premises  mentioned  and  referred  to  in  the 
within  written  notice  and  demand,  and  also  personally  served 
upon  the  said  a  written  notice  and  demand  of  possession 

of  said  premises,  of  which  the  within  is  a  true  copy,  and  at  the 
time  of  making  said  demand,  this  deponent  showed  to  the  said 
the  deed  by  the  sheriff  of  the  county  of  to  this 

deponent  for  the  said  premises,  which  said  deed  is  referred  to 
within,  and  that  said  refused  to  comply  with  the  demand 

for  possession. 

Sworn,  &c.  [Signature.) 

414  ;   Barton  v.  Beaity,  1    Stew.   Eg.  (a)  The  first  proceeding  is  a  demand 

412.    After  a  sale  in  a  foreclosure  suit,  of  possession,  accompanied  by  an  ex- 

and  the  purchaser  has  got  his  deed,  a  hibit  of  the  deed  from  the  sheriff  or 

writ   of  assistance  will   go   ex   debito  master.     Schenck  v.  Conover,  supra, 
justitice,   to   put    him    in    possession.  (6)  Proof  must   be  made  that  the 

Beatty  v.  De  Forrest,  10  C.  E.  Gr.  343;  deed  was  shown  to  the  tenant,  that  a 

S.  C,  on  appeal,  12  C.  E.  Gr.  482.,  demand  of  possession  was  made,  and 

The  same  relief  by  writ  of  assist-  that   the   tenant   refused    to   comply. 

ance  will  be  extended  to  a  purchaser  Fackler  v.  Worth,  2  Beas.  395. 
at  a  sale  in  partition. 


204  FORMS   OF    PLEADINGS. 

Petition  for  writ  of  assistance. 

In  Chancery  of  New  Jersey. 


Complainant, 


Between 

and 

Defendant.  j 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey  : 

The  petition  of  ,  of  the  (residence,)  respectfully  shows, 

that  by  virtue  of  the  final  decree  made  in  the  above  cause,  on 
the  day  of  last,  a  writ  of  fieri  faeiaa,  tested  on  or 

about  the  day  of  last,  issued  out  of  this  honorable 

court,  directed  to  the  sheriff  of  the  county  of  ,  commanding 

him  to  make  sale  of  [here  describe  the  premises  as  in  fi.  fa.;)  and 
your  petitioner  further  shows,  that  in  pursuance  of  said  writ  of 
fieri  facias,  then  and  still  being  sheriff  of  the  said  county 

of  ,  having  first,  in  due  form  of  law,  advertised  the  said 

premises  to  be  sold  at  public  vendue,  the  said  sale  to  be  held  at 
the  ,  in  the  city  of  ,  in  said  county,  on  the 

day  of  last,  at  the  hour  of  o'clock  in  the  forenoon, 

at  the  said  place  and  hour,  did  accordingly  offer  and  expose  said 
premises  for  sale  at  public  vendue,  under  and  by  virtue  of  said 
writ  of  fieri  facias ;  and  thereupon,  your  petitioner  having  bid 
for  the  said  premises  the  sum  of  dollars,  and  no  other 

person  having  bid  so  much  therefor,  the  said  sheriff  did  then 
and  there,  openly  and  publicly,  in  due  form  of  law,  strike  off 
and  sell  the  said  premises  for  the  said  sum  to  your  petitioner,  he 
being  then  and  there  the  highest  bidder  for  the  same. 

And  your  petitioner  further  shows,  that  afterwards,  to  wit,  on 
the  day  of  last,  the  said  sheriff  did  execute  and 

deliver  unto  your  petitioner  a  deed  of  conveyance  of  said 
premises,  bearing  date  the  day  of  last,  wherein  and 

whereby  the  said  sheriff  did  grant,  bargain,  sell,  assign,  transfer 
and  convey  unto  your  petitioner,  his  heirs  and  assigns,  the 
premises  above  described,  with  the  appurtenances,  to  have  and 
to  hold  to  his  own  use  and  benefit  forever,  in  as  full,  ample  and 
beneficial  a  manner  as  by  virtue  of  the  said  writ  of  fieri  facias 
the  said  sheriff  might,  could  or  ought  to  convey  the  same ;  which 


WRIT  OF   ASSISTANCE.  205 

conveyance  was  afterwards  duly  acknowledged  by  the  said 
sheriiF  before  ,  one  of  the  masters  of  this  court,  and  after- 

wards duly  recorded  in  the  clerk's  office  of  the  said  county  of 
,  as  by  reference  to  said  deed  will  more  fully  appear. 

And  your  petitioner  further  shows,  that  the  said  premises,  at 
the  time  of  filing  the  bill  of  complaint  in  said  cause,  were  and 
now  are  in  the  possession  and  occupation  of  the  defendant,  {or 
as  the  case  may  be,)  and  that  he  then  enjoyed  and  now  enjoys 
the  rents,  issues  and  profits  thereof. 

And  your  petitioner  further  shows,  that  since  the  sale  of  the 
said  premises,  and  the  execution  and  delivery  of  the  said  sheriff's 
deed  therefor  to  your  petitioner,  your  petitioner  has  frequently 
applied  to  the  said  ,  and  requested  him  to  deliver  up  the 

possession  of  the  said  premises  to  your  petitioner,  but  that  the 
said  has  hitherto  refused  and  still  does  refuse  to  comply 

with  such  reasonable  request  of  your  petitioner;  that,  on  the 
day  of  last,  your  petitioner  ("  by  his  agent ")  called 

upon  the  said  ,  and  exhibited  to  him  the  said  sheriff's 

deed  to  your  petitioner  for  said  premises,  and  demanded  posses- 
sion thereof,  but  that  the  said  absolutely  refused  to  deliver 
the  same  to  your  petitioner. 

Your  petitioner  therefore  prays  that  an  order  may  be  made 
by  this  honorable  court,  directing  and  commanding  the  said 
and  his  confederates,  or  any  one  holding  under  him,  forthwith 
to  quit  said  premises,  and  to  deliver  the  possession  thereof  to 
your  petitioner,  and  said  to  pay  the  costs  of  this  applica- 

tion, and  that  your  petitioner  have  such  other  or  further  relief 
in  the  premises  as  may  be  necessary  and  proper.  And  your 
petitioner,  as  in  duty  bound,  will  ever  pray,  &c. 

{Signature  of  solicitor  and  counsel.) 

New  Jersey,  ss. —  ,  of  full  age,  being  duly  sworn,  on 

his  oath  saith — that  he  is  the  petitioner  named  in  the  above 
petition  ;  that  the  matters  and  things  therein  set  forth  are  true, 
to  the  best  of  his  knowledge,  information  and  belief. 

Sworn,  &c.  {Signature.) 


206  FORMS   OF    PLEADINGS. 

Notice  of  motion  for  order  for  possession.(a) 

{Title  of  cause.) 
To  ,  defendant  in  the  above-entitled  cause : 

Please  take  notice,  that  I  shall  apply  to  the  Chancellor  of 
this  state,  at  the  state-house,  in  Trenton,  {or,  "  at  the  chancery 
chambers  in  ,")  on  ,  the  day  of  next, 

(or  "  instant,")  at  ten  o'clock  in  the  forenoon,  or  as  soon  there- 
after as  counsel  can  be  heard  thereon,  upon  a  petition  for  an 
order  directing  and  commanding  you  to  quit  the  premises  in 
said  petition  described,  being,  &c.,  {the  mortgaged  premises,  or 
otherwise,  briefly  describing  them,)  and  to  deliver  possession 
thereof  unto  ,  the  purchaser  thereof  at  the  sheriff's  sale 

under  the  decree  in  the  above  cause,  and  also  directing  you  to 
pay  the  costs  of  this  application. 

Dated,  &c.  {Solicitor  of  petitioner.) 

New  Jersey,  ss. —  ,  of  full  age,  being  duly  sworn, 

says — that  he  served  a  notice,  of  which  the  foregoing  is  a  true 

copy,  on  ,  by  delivering  the  same  to  the  said  ,  to 

whom   the  same   is   directed,  personally,  on  the  day  of 

instant,  and  informing  him  of  the  object  of  said  notice. 

Sworn,  &c.  {Signature.) 

Order  for  possession.(6) 

{Title  of  cause.) 
It  appearing  to  the  court,  by  the  petition  filed  by  , 

and  the  affidavit  annexed  thereto,  that  the  said  purchased 

(a)  In  all  cases,  the  parties  in  pos-  petitioner  will  present  the  petition  to 
session  must  have  notice  of  the  appli-  the  Chancellor,  duly  verified,  accom- 
cation  and  are  entitled  to  be  heard  on  panied  by  the  proof  of  due  service  of 
it.  Blauvelt  v.  Smith,  siipra;  Fackler  the  demand  for  possession  and  of  the 
V.  Worth,  supra.  Five  days'  notice  is  notice  of  motion, 
required  of  the  application.  Bale  Where  a  purchaser  held  the  deed 
140.  And  the  notice  must,  unless  for  two  tracts  of  land,  one  of  which 
otherwise  ordered  by  the  Chancellor,  was  insufficiently  described  in  the  ad- 
be  for  a  regular  motion-day.  See  rules  vertisement  of  sale,  on  an  application 
4,  5.  for  an  order  for   possession,  leave  to 

(6)  On  the  day  for  which  the  appli-  amend  the  petition,  so  that  it  might 

■cation  is  noticed,  the  counsel  of  the  be  an  application  for  the  possession  of 


WRIT  OF   ASSISTANCE.  207 

the  mortgaged  premises,  described  in  the  bill  of  complaint  and 
foreclosed  in  the  above-stated  cause,  at  the  sale  made  thereof  by 
the  sheriff  of  the  county  of  ,  by  virtue  of  the  execution 

issued  in  said  cause,  and  that  the  defendant,  ,  who,  at  the 

time  of  filing  said  bill  of  complaint  and  making  the  decree  in 
said  cause,  owned  the  equity  of  redemption,  and  was  in  the  pos- 
session of  the  said  mortgaged  premises,  is  still  in  possession 
thereof,  and  refuses  to  deliver  up  possession  unto  the  said  , 

the  purchaser,  and  now  owner  thereof,  and  that  the  said 
hath  prayed  the  aid  of  this  court ;  and  it  appearing  that  due  and 
legal  notice  of  this  application  hath  been  given  to  the  said  : 

It  is,  on  this  day  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  ,  on  motion  of,  &c.,  ordered, 

that  said  ,  defendant  in  this  cause,  on  being  served  with  a 

certified  copy  of  this  order,  forthwith  deliver  up  to  the   said 
the  possession  of  the  mortgaged  premises  mentioned  and 
described  in  the  pleadings  and  decree  in  this  cause,  and  in  the 
deed  of  conveyance  executed  by  the  sheriff  of  the  county  of 
to  the  said  ,  in  pursuance  of  said  decree  and  execu- 

tion thereon,  and  upon  such  service,  accompanied  with  demand 
of  possession,  and  refusal  thereof,  the  said  may  apply  for 

a  writ  of  assistance,  according  to  the  course  of  this  court  in  such 
case. 

Proof  of  service   of  order   for  possession. (a)    New 
Jersey,  ss. —  ,  of  full  age,  being  duly  sworn,  on  his  oath 

saith — that  on  the  day  of  instant,  he  served  a  copy 

of  the  order  of  this  court  made  in  this  cause,  bearing  date  the 
day  of  instant,  and  duly  certified  under  the  seal  of 

this  court,  and  the  hand  of  the  clerk,  personally,  by  delivering 
the  same  to  him ;  and  at  the  time  of  such  service,  this  deponent, 
in  behalf  of  ,  and  as  the  agent  of  the  said  ,  de- 

one  tract  only,  was  refused,  and  the  defendant  to  an  action  at  law  for  the 
purchaser  left  to  his  action  at  law  for  other.  Van  Meter  v.  Borden,  10  C.  E. 
both  tracts,  on  the  ground  that  there       Gr.  414. 

was  no  suflacient  ground  to  justify  the  (a)    The    clerk    will    furnish    the 

separation  of  the  transaction,  giving  solicitor  with  true  copies  of  the  order, 
relief  in  chancery  by  summary  pro-  under  the  seal  of  the  court,  to  be  served 
cess  as  to  one  part,  and  exposing  the      on  the  tenants  and  others  in  possession. 


208  FORMS   OF   PLEADINGS. 

manded   of  the   said  the   possession   of  the    mortgaged 

premises  mentioned  and  set  forth  in  the  petition  of  the  said 
,  and  in  said  order,  pursuant  to  said  order,  and  that  the 
said  ,  the  possessor,  refused  to  deliver  up  the  possession 

of  the  said  premises  to  the  said  ,  or  to  this  deponent,  as 

the  agent  of  said 
Sworn,  &c. 

Notice  of  motion  for  writ  of  assistance. (a) 
{Title  of  cause,  and  mentioning  petition.) 
To  ,  defendant  in  the  above  cause : 

Please  take  notice,  that  I  shall  apply  to  the  Chancellor  of 
this  state,  at  the  state-house,  in  Trenton,  {or,  "  at  the  chancery 
chambers  in  ,"  as  the  case  may  be,)  on  ,  the 

day  of  instant,  at  the  hour,  &c.,  for  an  order  for  a  writ  of 

assistance,  and  for  a  writ  of  assistance  to  cause  you  to  quit  the 
premises  described  in  the  petition  above  referred  to,  and  to 
deliver  possession  thereof  unto  ,  the  purchaser  thereof  at 

the  sheriff's  sale  under  the  decree  in  the  above  cause. 

Dated,  &c.  {Signature  of  solicitor.) 

Order  for  writ  of  assistance. 

{T\tle  of  cause.) 

It  appearing  to  the  Chancellor  that,  by  an  order  of  this  court, 
made  on  the  day  of  instant,  in  the  above-stated 

cause,  upon  the  petition  filed  by  against  the  defendant, 

,  the  said  ,  on  being  served  with  a  certified  copy 

of  said  order,  was  directed  forthwith  to  deliver  up  to  the  said 
,  the  purchaser  under  the  sheriff's  sale,  the  mortgaged 
premises  mentioned  in  the  bill  of  complaint  and  decree  of  fore- 
closure in  said  cause,  granted  and  conveyed  to  the  said  , 
by  the  sheriff  of  the  county  of  ;  and  it  further  appear- 
ing to  the  Chancellor  that  the  said              ,  the  said  petitioner, 

(a)  Under  the  present  practice,  the  cation,  proof  of  the  service  of  the 
writ  of  assistance  does  not  issne  of  order  to  deliver  possession  and  refusal 
course,  but  upon  notice  of  the  appli-       to  obey.  Fackler  v.  Worth,  2  Beas.  395. 


WRIT   OF   ASSISTANCE.  209 

hath  caused  a  certified  copy  of  said  order  to  be  duly  served  on  the 
said  ,  pursuant  to  the  said  order,  and  that  the  said 

hath  refused  to  deliver  up  the  said  premises,  in  contempt  of  the 
order  of  this  court ;  and  it  also  appearing  that  due  and  legal 
notice  of  this  application  hath  been  given  to  the  said  :  It 

is,  on  this  day  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  ,  ordered  by  the  Chancellor^ 

on  motion  of  ,  of  counsel  with  the  said  petitioner,  that  a 

writ  of  assistance  do  issue,  according  to  the  course  of  this  court, 
and  under  the  seal  of  this  court,  directed  to  the  sheriff  of  the 
county  of  ,  commanding  the  said  sheriff  to  enter  into  the 

said  mortgaged  premises  so  purchased  by  the  said  ,  and 

from  thence  remove  the  said  and  his  confederates,  and 

any  one  claiming  under  him,  and  in  possession  thereof,  and  to 
put  and  place  the  said  ,  or  his  lawful  attorney  or  agent, 

in  full  and  peaceable  possession  thereof.  And  it  is  further 
ordered,  that  the  said  do  pay  the  costs  of  the  petition  and 

proceedings  thereon  to  be  taxed.(a) 

Writ  of  assistance.  New  Jersey,  ss. — The  State  of  New 
Jersey  to  the  sheriff  of  the  county  of  — Greeting : 

Whereas,  it  has   been  represented   to  us,  in  our   Court  of 

Chancery,  in  a  certain  cause  therein" depending,  wherein 
[l.  s.]  is  complainant,  and  is  defendant,  that  by 

an  order  made  in  said  cause,  bearing  date  the  day 

of  ,  in  the  year  of  our  Lord  eighteen  hundred  and  y 

it  was  ordered,  that  the  said  should  forthwith  deliver  up 

to  ,  or  to  his  lawful  attorney  or  agent,  the  possession  of 

the  mortgaged  premises  mentioned  and  described  in  the  plead- 
ings and  decree  in  said  cause,  and  in  the  deed  executed  by  the 
sheriff  of  the  county  of  to  the  said  ,  in  pursuance  of 

said  decree,  on  being  served  with  a  certified  copy  of  said  order ; 
and  whereas  the  said  ,  who  was  in  possession  of  said  prem- 

(a)  The  costs  of  this  proceeding  Patrick  v.  Warner,  4  Paige  397.  la 
may  be  collected  by  execution  after  the  case  first  cited  above,  the  party 
demand  of  payment  and  refusal.  In  charged  took  the  benefit  of  the  insol- 
Chancery,  September,    1874  ;   and  see      vent  laws  and  was  discharged, 

O 


210  FORMS  OF  PLEADINGS. 

ises,  has  been  duly  served  with  a  certified  copy  of  said  order, 

and  required  to  deliver  the  possession  of  said  premises  pursuant 

thereto,  which  he  has  refused,  and  still  refuses  to  do :  Now, 

therefore,  we  command  you,  that  you  do  forthwith  eject  and 

remove  from  the  said  premises  the  said  ,  and  all  persons 

claiming  under  him,  or  in  possession  of  any  part  thereof  under 

him,  and  that  you  deliver  possession  thereof  to  the  said  , 

or  to  his  solicitor,  or  other  authorized  attorney  or  agent ;  and 

hereof  fail  not  at  your  peril. 

Witness  ,  our  Chancellor,  at  Trenton,  the  day  of 

,  in  the  year  of  our  Lord  eighteen  hundred  and 

Solicitor. 
Clerk. 


OF  EXECUTIONS. 


Execution  for  sale  of  mortgaged  premises,  (a)    New 

Jersey,  to  wit — The  State  of  New  Jersey  to  the  sheriflf  of  the 

county  of            ,  {or,  "  to  ,  one  of  the  masters  in  chan- 
cery of  New  Jersey,") — Greeting : 

(a)  The  Court  of  Chancery  has  full  recorded  in  full  by  the  clerk  of  the 

power  to  issue  all  process  necessary  court  out  of  which  the  same  issues; 

to  carry  its  decree  into  effectual  exe-  and  the  record  so  made  is  as  good 

cution.     Rev.,  "Chancery,"  ^  64.     At  evidence    as    the   writ    itself.     Bev., 

the  expiration  of  ten  days  after  the  "Executions,"  §    2.     Every  execution 

filing  of  the  final  decree  (in  case  no  issued  shall  be  directed   to  a  sheriff", 

order  staying  the  execution  shall  have  unless  the  Chancellor  shall,  for  reasons 

been  entered),  the  complainant  is  en-  presented    to   him,   otherwise   order, 

titled  to  his  execution.     RuleflS.  Rule    115.      When     the    mortgaged 

The  entering  of  an  appearance  by  premises  are  situate  in  more  than  one 

a  defendant  does  not  operate  to  stay  county,  the  practice  is  to  direct  the 

the  issuing  of  an  execution.     Pamph.  execution  to  a  master ;   but  the  writ 

L.,  1893,  p.  202.  will   not   be  directed   to   any  master 

Every   writ   of   execution    against  connected  in  business  with,  or  who  is 

lands,  tenements,  hereditaments   and  clerk  for,  or  employed  in  the  business 

real  estate  shall,  before  it  be  delivered  of  the  solicitor  of  any  of  the  parties 

to    the    sheriff^   or   other   oflBcer,   be  to  the  suit.     Ruie  46. 


EXECUTION. 


211 


Whereas,  on  the  day  of  ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  ,  by  a  certain 

[l.  s.]  decree  made  in  our  Court  of  Chancery,  before  our 
Chancellor,  at  Trenton,  in  a  certain  cause  therein  de- 
pending, wherein  is  complainant,  and  and  ,  his 
wife,  are  defendants:  It  was  ordered,  adjudged  and  decreed, 
that  so  miich(a)  of  certain  mortgaged  premises,  with  the 
appurtenances,  in  the  bill  of  complaint  in  the  said  cause  par- 
ticularly set  forth  and  described,  that  is  to  say-^all  that,  &c., 
{describe  the  premises  as  in  the  bilL){b)  Together  with  all  and 
singular  the  rights,  privileges,  hereditaments  and  appurtenances 
thereunto  belonging  or  in  any  wise  appertaining,  and  the  rever- 
sions and  remainders,  rents,  issues  and  profits  thereof,  and  all 
the  estate,  right,  title,  interest,  use,  property,  claim  and  demand 
of  the  said  defendants  of,  in,  to  and  out  of  the  same,  as  may  be 
necessary  for  the  purpose,  be  sold  to  pay  and  satisfy  ("  in  the 


(a)  Sale  in  parcels.  Whether  the 
execution  commands  the  sheriff  to 
sell  so  much  of  the  premises  as  may 
be  necessary  to  satisfy  the  decree  or  to 
raise  the  sum  required  out  of  the 
premises  or  not,  the  duty  imposed 
upon  him  as  to  the  quantity  of  land  to 
be  sold,  is  the  same.  His  duty,  in 
either  event,  is  to  sell  only  so  much  of 
the  premises  as  may  be  necessary  to 
satisfy  the  requirements  of  the  execu- 
tion, provided  such  portion  can  be 
conveniently  and  reasonably  detached 
from  the  residue  of  the  property. 
Van  Duyne  v.  Van  Duyne,  1  C.  E. 
Or.  93 ;  Corles  v.  Lashley,  1  McCart. 
116.  Non-compliance  with  such  rule 
is  sufficient  ground  for  setting  aside 
the  sale.  Johnson  v.  Garrett,  1  C.  E. 
Gr.  31.  But  a  mere  error  of  judgment 
or  mistaken  exercise  of  discretion  by 
the  sheriff  in  the  absence  of  fraud  or 
unfairness  in  the  sale,  affords  no 
ground  for  the  interference  of  the 
court.  Van  Duyne  v.  Van  Duyne,  ubi 
supra.     Tl>e   defendant   in   execution 


was  allowed  an  order  requiring  the 
sheriff  to  sell  the  premises  in  parcels. 
Ryerson  v.  Boorman,  3  Hal.  Ch.  167, 
640  The  exception  to  this  rule  is 
where,  under  the  statute  (Bet., ''  Chan- 
cery" ^  74,)  it  is  decreed  that  a  part 
of  the  premises  cannot  be  sold  to 
satisfy  the  amount  due  without  ma- 
terial injury  to  the  remaining  part  of 
the  mortgaged  premises.  Parkhurst 
V.  Cory,  3  Stock.  233.  Where  a  de- 
fendant stands  by  without  objection, 
and  permits  a  sheriff  to  sell  several 
separate  lots  as  one  tract,  he  cannot 
afterwards  object  because  they  were 
not  sold  in  parcels.  Holmes  v.  Steele,  1 
Stew.  Eq.  173.  If  the  order  for  sale  be 
erroneous,  the  practice  is  to  apply  by 
petition  or  motion  to  amend  the  decree. 
Horner  v.  Corning,  1  Stew.  Eq.  254. 

(6)  The  description  of  the  premises 
in  the  execution  must  conform  to  and 
include  only  those  in  the  complain- 
ant's mortgage.  Corles  v.  Lashley, 
supra;  Ely  v.  Perrine,  1  Gr.  Ch.  396. 


212  FORMS  OF   PLEADINGS. 

first  place  ")  unto  the  said  complainant  the  sum  of  ,  the 

principal  and  interest  secured  by  a  certain  mortgage  given  by 
and  his  wife,  the  defendants,  to  the  complainant, 

bearing  date  the  day  of  ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  ,  together  with  lawful 

interest  thereon,  from  the  day  of  {date  of  master's 

report)  until  the  same  be  paid  and  satisfied,  and  also  the  costs  of 
the  said  complainant ;  and  ("  in  the  second  place,  unto  the  de- 
fendant, ,  the  sum,  &c.,  together  with  lawful  interest 
thereon  as  aforesaid,"  reciting  the  decree,  as  the  case  may  be;} 
and  that  for  that  purpose  a  writ  of  fieri  facias  should  issue, 
directed  to  the  sheriff  of  the  county  of  ,  commanding  him 
to  make  sale  as  aforesaid ;  and  that  the  surplus  money  arising 
from  such  sale,  if  any  there  be,  should  be  brought  into  the  said 
court,  subject  to  the  further  order  of  the  said  court,  as  by  the  said 
decree,(a)  remaining  of  record  in  our  said  Court  of  Chancery, 
at  Trenton,  does  and  may  more  fully  appear.  And  whereas, 
the  costs  of  the  said  complainant  have  been  duly  taxed  at 
dollars  and             cents : 

Therefore,  we  command  you,  that  you  cause  to  be  made  of 
the  premises  aforesaid,  by  selling  so  much  thereof  as  may  be 
necessary  for  the  purpose,  the  said  sum  of  dollars,  together 

with  lawful  interest  thereon  as  aforesaid,  and  said  sum  of  costs, 
with  lawful  interest  thereon,  from  the  date  of  said  decree, 
(insert  here  decree  for  defendant,  if  any,)  and  that  you  have 
those  moneys  before  our  said  Chancellor,  in  our  Court  of  Chan- 
cery aforesaid,  at  Trenton,  on  the  Tuesday  of  next, 
to  render  to  the  said  complainant  ("  and  defendants,")  and  also 
the  surplus  money ,(6)  if  any  there  be,  to  abide  the  further  order 

(a)    The   execution   must    conform  either  of  the  above  respects ;  and  any 

substantially  to  the  decree.     A  want  sheriff  who  shall  pay  over  to  any  de- 

tbereof  will  avoid  the  sale.    Common-  fendant  named  in  an  execution,  any 

wealth  V.  Fisher,  2  J.  J.  Marsh.  137.  money  raised   by  him   on   the  same^. 

(6)  Every  sheriflF  shall  make  return  unless  so  directed  by  the  writ,  or  by 

of  his  execution  and  pay  to  the  clerk  an  order  of  the  court  afterwards  made, 

of  the  court  any  surplus  in  his  hands,  shall  have  no  allowance  for  the  same, 

within  thirty  days  after  sale ;  and  no  Eule  117.     Sheriffs  and  other  officers 

execution   will    be   directed    to    any  whose  duty  it  is  or  shall  be  to  make 

sheriff  while  he  shall  be  in  default  in  return  of  any  writ  or   process,  shall 


EXECUTION. 


213 


of  our  said  court,  according  to  the  decree  aforesaid.  And  you 
are  to  make  return  at  the  time  and  place  aforesaid,  by  certificate 
under  your  hand, (a)  of  the  manner  in  which  you  shall  have 
executed  this  our  writ,  together  with  this  writ. 


put  their  own  names  to  the  return  of 
such  writ  or  process,  so  that  the  court 
may  know  of  whom  they  receive  such 
return  ;  and  any  sheriff  who  shall  not 
sign  such  return,  shall  be  amerced, 
and  also  answer  in  damages  to  the 
party.     Bev.,  "Sheriffs,"  |  17. 

(a)  Adjournment  of  sale.  The 
sheriff  or  other  officer  selling  under 
process  of  execution,  may  make  two 
adjournments,  (but  no  more,  unless  by 
permission,  in  writing,  from  the  com- 
plainant in  execution,)  of  the  sale  of 
lands,  &c.,  to  any  time  not  exceeding 
one  month  for  each  adjournment. 
JRev.,  "Sale  of  Lands,"  ?  5.  Subject  to 
the  limitations  and  restrictions  of  the 
section  above  quoted,  an  adjournment 
is  discretionary  with  the  sheriff. 
Skillman  v.  Holcomh,  1  Seas.  131 ; 
Morris  v.  Woodward,  10  C.  E.  Or.  32. 
He  may  adjourn  the  sale  to  a  place 
other  than  that  specified  in  the  adver- 
tisement. Penn  v.  Craig,  1  Gr.  (Jh. 
495.  If  any  sale  of  lands  be  adjourned 
for  more  than  one  week,  such  ad- 
journment must  be  published  in  the 
same  two  newspapers  in  which  the 
notice  of  sale  was  published;  the 
original  advertisement  of  sale  need 
not  be  published,  but  a  statement  of 
the  parties  to  the  cause,  and  the  time 
and  place  of  such  adjournment,  is 
sufficient.  Rtv.,  ^Sale  of  Lands,"  |  6. 
If  the  adjournment  be  for  a  less  time 
than  one  week,  public  proclamation 
made  at  the  time  at  which  the  sale 
was  published  to  take  place  is  all  the 
law  requires.  Allen  v.  Cole,  1  Stock. 
286;  Coze  v.  Halsted,  1  Gr.  Ch.  311. 
Where   the   sale   is   adjourned    from 


week  to  week,  the  adjournments  need 
not  be  published.  Heivitt  v.  Montclair 
B.  W.  Co.,  10  C.  E.  Gr.  392.  Sales 
should  not  be  appointed  to  take  j^lace 
on  a  legal  holiday,  but  when  such  is 
the  case,  the  sheriff  may  adjourn  a 
sale  on  that  day ;  and  when  the  day 
fixed  for  the  sale  (not  a  legal  holiday) 
is  afterwards  appointed  a  legal  holi- 
day, he  may  and  should  adjourn  the 
sale.  White  v.  Zust,  1  Stew.  Eq.  107. 
Sales  may  be  made  on  Saturday  after- 
noon.    PampA.  1/.,  1892,  ;3.  337. 

The  sale.  Where  the  writ  is  di- 
rected to  the  sheriff,  it  may  be  exe- 
cuted by  the  under-sheriff  or  a  special 
deputy ;  but  a  sheriff  cannot  appoint 
a  special  deputy,  pro  hac  rice,  by  parol. 
Allen  V.  Smith,  7  Hal.  159 ;  Meyer  v. 
Patterson,  1  Stew.  Eq.  239 ;  see  Wroe 
v.  Harris,  2  Wash.  (Fa.)  126.  For 
mode'  of  appointment  of  under-sheriff, 
see  Pi^ev.,  "Sheriffs,"  §  43  A  coroner 
may  execute  a  writ  in  case  of  the 
death  or  disability  of  the  sheriff. 
Bev.,  "Sheriffs,"  §  39.  Execution  sales 
are  to  be  made  at  public  auction,  for 
money  in  hand,  and  to  the  highest 
bidder.  Bev.,  "Sales  of  Lands,"  ^  1. 
It  has  been  held  that  by  the  mutual 
consent  of  plaintiff  and  defendant,  an 
execution  sale  may  be  made  on  a 
credit  instead  of  for  cash  in  hand. 
Killgore  v.  Peden,  1  Strobh.  (Laiv)  18. 
The  place  of  sale  is  discretionary  with 
the  sheriff,  but  the  discretion  must 
be  reasonably  exercised.  Cwmmins  v. 
Little.  1  a  E.  Gr.  48,  54.  It  is  the 
practice  in  New  Jersey  for  the  Chan- 
cellor, in  a  proper  case  and  upon 
proof  of  its  advisability,  to  direct  that 


214 


FORMS   OF   PLEADINGS. 


Witness  ,  our  Chancellor,  at  Trenton  aforesaid,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and 


Clerh. 


Solicitor. 


[Endorsement.) 

In  Chancery  of  New  Jersey. 


[Title  of  cause.) 
Returnable  Term,  18     . 

Decree  for  $ 

Interest  from 
Costs  taxed  at 
Interest  from 

Besides  sheriff's  execution  fees. 


} 


Fi.  fa.  for  sale  of 
mortgaged  premises. 

Solicitor. 


Execution  against  goods  and  lands  for  costs. (a) 
New  Jersey,  ss. — The  State  of  New  Jersey  to  the  sheriff  of  the 
county  of  — Greeting : 


the  sale  be  had  upon  the  premises  to 
be  sold,  instead  of  at  the  county  seat. 
It  is  the  custom  in  said  state,  where  a 
bid  is  fairly  claimed  by  two  or  more 
persons,  to  put  the  property  up  again 
at  the  price  bid,  and  as  at  the  bid  of 
the  person  whom  the  auctioneer  may 
declare  entitled  to  it.  Conover  v.  Wal- 
ling, 2  McCart.  173. 

(a)  No  execution  can  issue  for  costs 
allowed  by  a  decree  or  order  of  the 
court,  unless  specially  directed.  Bule 
114.  The  practice,  under  the  fore- 
going rule,  is  to  serve  a  copy  of  the 
decree  or  order  granting  costs  and  a 
copy  of  the  taxed  bill  of  costs  upon 
the  party  against  whom  costs  are 
awarded,  and  file  proof  of  such  ser- 
vice, and  also  of  demand  of  payment 


of  the  costs,  and  if  it  appear  to  the 
court  that  the  party  has  neglected  or 
refused  to  pay,  the  execution  will  issue. 
The  levy  cannot  be  made  after  the 
return-day  of  the  writ.  3  Bae.  Ab., 
"Execution"  734 ;  see  Kemble  v.  Harris, 
7  Vr.  526.  An  execution  should  be 
delivered  to  the  sheriff  before  the 
return-day  mentioned  in  it.  "When 
this  cannot  be  done,  it  is  the  practice 
to  return  the  writ  into  court  and  ob- 
tain a  new  one.  Where  a  bill  has 
been  dismissed  or  demurrer  allowed,, 
and  another  bill  is  filed  for  the  same 
matter,  this  court  will  stay  proceed- 
ings in  the  second  suit  till  the  costs- 
of  the  former  are  paid.  Updike  v. 
Bartles,  2  Beas.  231. 


EXECUTION.  215 

Whereas,  by  a  certain  final  decree  of  our  Chancellor,  in  our 
Court   of  Chancery,   at   Trenton,  in   a   certain   cause 
[l.  s.]    therein  depending,  wherein         is  complainant,  and 

and  are  defendants:    It  was  ordered,  adjudged 

and  decreed,  that  the  complainant's  bill  of  complaint  in  that 
cause  should  stand  dismissed  out  of  our  said  court  for  want  gf 
prosecution,  [or  as  the  case  may  be,)  with  costs  to  be  paid  by  the 
complainant  to  the  said  defendants ;  and  whereas,  the  clerk  of  our 
said  Court  of  Chancery  has  duly  taxed  the  said  defendants'  costs, 
in  and  about  their  defence  in  the  said  cause,  at  dollars  and 

cents :  Therefore,  we  command  you,  that,  without  delay,  you 
do  cause  to  be  made  of  the  goods  and  chattels  of  the  said 
in  your  county,  the  said  sum  of  dollars  and  cents,  for 

the  defendants'  costs  aforesaid,  and  interest  thereon  from  (the  date 
of  the  decree,)  together  with  the  costs  of  this  writ ;  and  if  suffi- 
cient goods  and  chattels  of  the  said  in  your  county  you 
cannot  find,  whereof  to  make  the  said  sum  of  money,  then  and 
in  that  case  we  command  you,  that  of  the  lands,  tenements, 
hereditaments  and  real  estate  of  the  said  in  your  county, 
whereof  he  was  seized  on  the  day  of  ,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  ,  the  day  of 
the  date  of  the  decree  aforesaid,  or  at  any  time  afterwards,  in 
whosesoever  hands  the  same  may  be,  you  do  cause  to  be  made 
the  whole  or  the  residue,  as  the  case  may  require,  of  the  afore- 
said sum  of  dollars  and  cents,  and  interest  as  afore- 
said together  with  the  costs  of  this  writ,  and  that  you  pay  the 
said  sum  of  money,  so  by  you  to  be  levied  and  made,  to  the  said 
defendants,  or  their  solicitor  in  the  said  cause ;  and  have  you 
this  writ,  with  your  proceedings  thereon,  and  also  the  surplus 
money,  if  any  there  be,  before  our  Chancellor,  in  our  Court  of 
Chancery,  at  Trenton,  on  the             Tuesday  of  next. 

Witness  ,  our  Chancellor,  at  Trenton  aforesaid,  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and 

Clerk. 
Solicitor. 


216  FORMS   OF   PLEADINGS. 

Execution  against  goods  and  lands  on  a  decree 
for  payment  of  money. (a)  New  Jersey,  ss. — The  State  of 
^ew  Jersey  to  the  sheriff  of  our  county  of  — Greeting  : 

Whereas,  in  and  by  a  certain  decree  made  in  our  Court  of 
Chancery,  before  our  Chancellor,  at   Trenton,  on  the 
[l.  s.]  day  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  ,  in  a  certain  cause 

therein  depending,  wherein  and  are  complainants, 

and  and  are  defendants  :  It  was  ordered,  adjudged 

and  decreed,  that  the  complainants  are  entitled  to  receive  the 
sum  of  dollars,  together  with  lawful  interest  thereon  from 

the  day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ,  until  the  same  be  paid  and  satisfied, 

and  that  they  are  entitled  to  receive  of  the  said  defendants  their 
■costs  of  this  suit  to  be  taxed ;  and  by  the  said  decree  it  was 
further  ordered,  adjudged  and  decreed,  that  unless  the  said  de- 
fendants should,  within  days  after  service  upon  them  of  a 
<3opy  of  the  said  decree  and  of  the  taxed  bill  of  costs,  pay  to  the 
said  complainants,  or  to  their  solicitor,  the  said  sum  of 
dollars,  together  with  interest  and  costs  as  aforesaid,  the  com- 
plainants should  have  execution  for  the  same;  and  whereas, 
the  costs  of  the  said  complainants  in  this  suit  have  been  duly 
taxed  at  dollars,  and  we,  being  satisfied  that  the  said  de- 
fendants have  not  complied  with  the  terms  of  the  said  decree : 
Therefore,  we  hereby  command  you,  that  of  the  goods  and 
chattels  of  the  said  defendants  in  your  county,  you  cause  to  be 
.made  the  said  debt,  interest  and  costs,  together  with  the  costs  of 
this  writ ;  and  if  sufficient  goods  and  chattels  of  the  said  defend- 
ants in  your  county  you  cannot  find,  whereof  to  make  the  said 
debt,  interest  and  costs,  together  with  the  costs  of  this  writ,  then 

(a)  The  same  rule  prevails  as  to  will  issue.  Where  the  decree  provides, 
this  writ  as  in  the  case  of  an  execu-  as  is  sometimes  the  case,  that  execu- 
tion for  costs ;  the  decree  usually  tion  issue  for  the  amount  of  the  decree 
directs  that  a  copy  of  it  be  served,  and  costs,  no  further  order  of  the 
together  with  the  taxed  bill  of  costs,  court  is  necessary  on  filing  the  proofs 
and  if  payment  of  the  decree  and  of  service  of  copies  of  the  decree  and 
<;osts  is  not  made  within  the  time  costs. 
anentioned  in  the  decree,   execution 


EXECUTION.  217 

we  further  command  you,  that  of  the  lands,  tenements,  heredita- 
ments and  real  estate,  whereof  the  said  defendants  were  seized 
on  the  day  of  ,  or  at  any  time  afterwards,  in  whose- 

soever hands  the  same  may  be,  you  cause  to  be  made  the  whole 
or  the  residue,  as  the  case  may  require,  of  the  said  sum  of 
dollars,  with  the  interest  and  costs  as  aforesaid,  and  the  costs  of 
this  writ ;  and  that  you  have  those  moneys  before  our  Chan- 
cellor, in  our  said  Court  of  Chancery,  at  Trenton,  on  the 
Tuesday  of  next,  to  render  to  the  said  complainants,  and 

also  the  surplus  money,  if  any  there  be,  to  abide  the  further 
order  of  our  said  court ;  and  you  are  to  make  return  at  the  time 
and  place  aforesaid,  by  certificate  under  your  hand,  of  the 
manner  in  which  you  shall  have  executed  this  writ,  together 
with  this  writ. 

Witness  ,  our  Chancellor,  at  Trenton,  this 

day  of  ,  in  the  year,  &c. 

Clerk. 
Solicitor. 

Advertisement  of  sherifif's  or  master's  sale.(a)    By 
virtue  of  a  writ  of  fieri  facias,  to  me  directed,  issued  out  of  the 

(a)  In  all  cases  whatsoever  where  the  county  in  which  the  lands  are 
any  sheriff,  coroner,  master  in  chan-  situate,  of  which  one  shall  be  a  news- 
eery  *  *  *  or  other  officer  or  paper  printed  and  published  at  the  • 
person  is  required  by  any  public  county  seat  of  said  county,  if  a  news- 
statute,  or  the  direction  of  any  court  paper  be  published  at  such  county 
of  competent  jurisdiction  in  this  state,  seat,  and  if  no  newspaper  be  published 
to  make  sale  of  any  lands,  tenements,  at  the  county  seat,  then  in  any  two 
hereditaments  or  real  estate,  such  newspapers  published  in  the  county 
officer  or  person,  unless  otherwise  and  circulating  in  the  neighborhood 
specially  directed  by  law,  shall  give  of  said  lands,  at  least  four  weeks  suc- 
notice  by  public  advertisements,  signed  cessively,  once  a  week,  next  preceding 
by  him  and  set  up  at  five  or  more  pub-  the  time  appointed  for  selling  the 
lie  places  in  the  county,  one  whereof  same  ;  and  at  the  time  and  place  so 
shall  be  in  the  township  (or  if  the  appointed,  between  the  hours  of  twelve 
land  be  in  a  city,  in  the  ward)  where  and  five  in  the  afternoon,  such  officer 
such  real  estate  is  situate,  of  the  time  or  person  shall  sell  the  same  at  public 
and  place  of  such  sale,  at  least  four  vendue  to  the  highest  bidder.  Rev-, 
weeks  next  before  the  time  so  ap-  "aSo/c  o/iareds,"  ^|  1,  29,  amended  by 
pointed,  and  shall  likewise  cause  the  Pamph.  L.,  1887,  p.  29.  In  addition 
same  to  be  published  in  two  of  the  to  the  foregoing  requirements,  Pamph. 
newspapers  printed  and  published  in  L.,   1891,  p.  491,   requires  that  the 


218* 


FORMS  OF   PLEADINGS. 


Court  of  Chancery  of  New  Jersey,  in  the  cause  wherein 

is  complainant,  and  is  defendant,  I  will  expose  to  sale  at 

public  vendue,  on  ,  the  day  of  ,  eighteen 


sheriff  shall  have  the  power  to  cause 
the  sale  to  be  published  in  two  of  the 
newspapers  printed  and  published  in 
the   county  in   which   the  lands   are 
situate  that  are  now  or  hereafter  may 
be  designated  for  the  publication  of 
the  laws  of  this  state ;  or  if  no  desig- 
nation has  been  made  of  newspapers  to 
publish  the  laws  in  the  year  in  which 
such  advertisement  is  made,  then  in 
two  of  the  newspapers  designated  for 
the   publication   of  the   laws  of  this 
state  in  the  year  preceding  such  ad- 
vertisement;   such   publication   shall 
be   at   least  four  weeks   successively, 
once  a  week,  next  preceding  the  time 
appointed  for  selling  the  said  lands, 
tenements,     hereditaments     or     real 
estate,   and    such    publication,   if   so 
made,  shall  be  deemed  suflBcient  with- 
out compliance  with  the  provisions  of 
any  act  heretofore  passed  in  reference 
to   such   publication ;    and   after   the 
sheriff'  shall  have  made  such  publica- 
tion  in   two  of  such   newspapers   as 
aforesaid,  then  such  publication  shall 
be  as  valid  and  effectual  as  if  made 
under    the    provisions    of    law    now 
existing.     The   foregoing  act    seems 
clearly   to   be   a   repealer  of  the  act 
{Pamph.   L.,    1891,    p.    161,)    which 
requires  publication  in  a  paper  pub- 
lished in  the  German  language,  so  far 
forth    as    concerns   sales    by   sheriffs. 
All  sales  conducted  by  officers  other 
than  sheriffs  should  be  published  in  a 
German  newspaper,  but  the  advertise- 
ment must  be  in  the  English  language, 
and  the  German  newspaper  is  one  of 
the  two  newspapers  in  which  sales  are 
required  to  be  published.    Publication 


in  three  newspapers  in  such  cases  is 
not  required. 

It  is  further  provided  by  law  that 
all  sales  of  land  made  by  virtue  of  any 
order,  judgment  or  decree  of  any  court 
of  record  of  this  state,  shall  be  con- 
firmed by  the  court,  notwithstanding 
any  defect  or  irregularity  in  the  pub- 
lication of  the  advertisement  of  such 
sale ;  provided,  that  the  officer  making 
such  sale  shall  certify,  under  oath, 
that  such  sale  was  otherwise  regular, 
and  that  the  pi-operty  was  sold  for  a 
fair  price  in  the  judgment  of  such 
officer  ;  and  provided  further,  that  the 
court  shall  be  satisfied  by  affidavit 
that  the  defect  or  irregularity  in  the 
publication  was  not  injurious  to  the 
parties  in  interest.  Pamph.  L  ,  1891, 
p.  24.  That  is  a  public  and  proper 
place  for  setting  up  advertisements 
contemplated  by  the  above  act  which 
is  likely  to  give  information  to  those 
interested  and  who  may  become  bid- 
ders at  the  sale.  Cummins  v.  Little,  1 
C.  E.  Gr.  48.  A  compliance  with 
both  the  letter  and  spirit  of  the  statute 
is  essential  to  a  fair  sale.  Ibid.  If 
one  of  the  notices  is  not  set  up  the 
length  of  time  required  by  law,  the 
title  of  the  purchaser  is  worthless. 
Ibid.  The  act  requires  the  first  pub- 
lication of  the  notice  in  the  news- 
papers to  be  made  four  whole  weeks 
next  preceding  the  day  appointed  for 
the  sale.  Parsons  v.  Lanning,  12  C. 
E.  Or.  70.  By  commencing  with  the 
day  of  sale,  and  counting  backward,  it 
will  be  certainly  ascertained  when 
the  first  insertion  in  the  newspapers 
should  be  made. 


APPOINTMENT   TO  ADJOURN   SALE. 


219 


hundred  and         '  ,  at  the  hour  of  (a)  o'clock  in  the  after- 

noon of  said  day,  at  ,  in  the  city  of  ,  in  the  county 

of  ,  all  that  certain(6)  {here  describe  the  property  to  be  sold.) 

Sheriff  or  master. {c) 
Solicitor. 
Adv'g  fee,  $ 


Appointment  of  master  or  sheriff  to  adjourn  a  sale 
of  lands. (cO 

[Title  of  cause.) 

To  ,  one  of  the  masters  in  chancery  of  New  Jersey,  {or, 

"sheriff  of  the  county  of  ,"  as  the  case  may  be) — Greeting  : 


(a)  "Where  a  sale  is  advertised  for  a 
specified  day,  between  the  hours  of 
twelve  and  five  o'clock  in  the  after- 
noon, and  the  property  is  sold  in  pur- 
suance of  such  advertisement,  the  sale 
will  not  be  set  aside,  although  there  is 
a  propriety  and  convenience  in  speci- 
fying a  particular  hour  for  the  sale. 
Coxe  v.  Hahted,  1  Gr.  Ch.  311.  All 
sales  of  land  should  be  made  at  the 
hour  usual  in  the  locality  where  the 
sale  is  held.  Howell  v.  Sehring,  1 
McCart.  84. 

(6)  If  the  advertisement  sufficiently 
identifies  the  property  to  be  sold,  it  is 
a  compliance  with  the  law.  Allen  v. 
Cole,  1  Stock.  286 ;  Merwin  v.  Smith,  1 
Gr  Ch.  182.  The  sale  may  be  set 
aside  if  the  description  is  defective. 
Hodgson  v.  Farrell,  2  MeCart.  88 ; 
Menvin  v.  Smith,  supra;  Wcddron  v. 
Letson,  2  McCart.  126. 

(c)  It  is  not  necessary  that  adver- 
tisements of  the  sale  of  real  estate  by 
a  sheriff  or  master  in  chancery  should 
be  signed  by  the  officer  with  his  own 
proper  signature.  Whether  the  offi- 
cer's name  is  signed  to  the  advertise- 
ment by  himself,  or  printed  or  signed 
by  another,  is  immaterial.     In  either 


case  it  is  a  virtual  signing  by  the 
officer.  Coxe  v.  Halsted,  1  Gr.  Ch.  311. 
{d)  Any  master  of  the  Court  of 
Chancery,  to  whom  any  execution  or 
order  of  sale  of  any  lands  or  real 
estate  may  be  directed,  may  continue 
such  sale  by  public  adjournment  sub- 
ject to  such  limitations  and  restric- 
tions as  may  be  specially  provided 
therefor,  either  in  person  or  by 
authority  in  writing  under  his  hand, 
and  commissioning  or  appointing  a 
master  of  said  court,  or  the  sheriflT  of 
said  county  in  which  such  lands  are 
situated,  to  make  such  adjournment  in 
the  name  and  stead  of  the  master  to 
whom  such  writ  or  order  is  directed, 
and  such  authority  for  such  adjourn- 
ment must  be  returned  by  the  master, 
with  the  statement  made  by  him  of 
the  proceedings  under  and  by  virtue 
of  the  writ  of  execution  or  order  of 
sale  as  aforesaid.  Rev.,  "Sale  of 
Lands,"  ?  37.  It  would  seem  to  be 
proper  practice,  under  this  statute,  in 
case  the  lands  are  situate  in  more 
than  one  county,  to  address  the  com- 
mission to  a  master,  and  not  to  a 
sheriff. 


220  FORMS  OF   PLEADINGS. 

You  are  hereby  appointed  {or  "  commissioned  ")  and  author- 
ized to  continue  the  sale  of  the  *  mortgaged  premises  described 
in  the  execution  in  the  above-stated  cause,  which  said  execution 
was  tested  on  the  day  of  ,  eighteen  hundred  and 

,  and  directed  to  me  as  master,  (or,  after  *,  "  premises 
described  in  the  decree  for  sale  in  the  above-stated  cause,  bearing 
date  on  the  day  of  ,  eighteen  hundred  and  ," 

or  as  the  case  may  be,)  by  public  adjournment,  to  ,  the 

day  of  ,  eighteen  hundred  and  ,  at  the  hour 

and  place  appointed  in  the  original  advertisement,  and  for  so 
doing  this  shall  be  your  authority. 

Witness  my  hand  this  day  of  ,  eighteen  hundred 

and  ,  at 

{Signature  of  master.) 

Statement  of  the  master  or  sheriff  of  his  proceed- 
ings under  the  foregoing  appointment.    In  pursuance 
of  the  foregoing  commission  {or  "  appointment,")  I  did,  on  the 
day  of  ,  eighteen  hundred  and  ,  publicly 

adjourn  the  sale  of  lands  and  premises  therein  referred  to,  until 
the  day  of  ,  eighteen  hundred  and  ,  at  the 

place  and  hour  at  which  said  lands  were  first  advertised  to  be 
sold. 

{Signature  of  master  or  sheriff.) 

Order  for  fieri  facias  for  deficiency.(a) 

{Title  of  cause.) 

Whereas,  by  the  final  decree  in  this  cause,  it  was  among  other 
things  therein  adjudged  and  decreed,  that  in  case  the  proceeds  of 
the  sale  of  the  mortgaged  premises  mentioned  in  the  bill  of  com- 
plaint should  be  insufficient  to  satisfy  and  discharge  the  mort- 

(a)  In  all   foreclosure  suits  begun  The  forms  proper  under  the  former 

since  March  12th,  1880,  the  right  to  statute  are  given  for  convenient  refer- 

decree  the  payment  of  any  excess  of  ence  in  cases  where  they  are  appli- 

the  mortgage  debt  above  the  net  pro-  cable, 
ceeds  of  sale  is  taken  away  by  statute. 


EXECUTION   FOR   DEFICIENCY.  221 

gage  debt,  the  deficiency  be  made  of  the  lands  and  tenements, 
goods  and   chattels  of  the  defendant,  ,  as   specifically 

prayed  in  the  bill  of  complaint,  it  appearing  to  the  court 
that  notice  that  such  relief  was  sought  by  the  said  bill  had 
been  duly  served  on  said  defendant,  according  to  law  and  the 
rules  and  practice  of  this  court,  and  that  a  writ  of  fieri  facias 
therefor  issue  out  of  this  court  against  said  defendant;  and 
whereas,  it  appears  to  the  court  that  ,  sheriff  of  the  county 

of  ,  has  duly  executed  the  fieri  facias  issued  to  him  for 

the  sale  of  the  said  mortgaged  premises,  and  has  made  return  to 
this  court  of  the  said  writ  and  his  proceedings  thereon,  accord- 
ing to  law,  and  that  the  proceeds  of  the  sale  of  the  said  mort- 
gaged premises  were  insufficient  to  satisfy  and  discharge  the 
said  mortgage  debt,  and  it  being  ascertained  by  the  statement  of 
said  sheriff",  annexed  to  said  writ  of  fieri  facias  and  returned 
therewith,  that  the  said  mortgaged  premises  have  been  sold  by 
him  according  to  law,  and  that  said  deficiency  is  the  sum  of 
dollars  and  cents:    It   is,  on   this  day  of 

,  in  the  year  of  our  Lord  eighteen  hundred  and  , 

ordered,  that  a  writ  of  fieri  facias  do  issue  pursuant  to  said 
final  decree,  to  levy  and  make  the  said  deficiency,  to  wit,  the 
sum  of  dollars  and  cents,  together  with  interest 

thereon  from  the  day  of  instant,  of  the  goods  and 

lands  of  the  said  defendant,  together  with  the  costs  of  the  said 
order  and  of  this  writ.  (In  case  the  decree  be  against  an 
executor  or  administrator,  say  after  "  defendant,"  administrator, 
&c.,  out  of  the  personal  estate  which  has  come  to  his  hands  in 
due  course  of  administration  ;  and  it  is  further  ordered,  that  the 
complainant  shall  be  at  liberty  to  apply  for  further  directions 
against  said  administrator,  or  to  call  him  to  account  before  the 
surrogate,  as  he  shall  be  advised.) 


222 


FORMS  OF  PLEADINGS. 


Abstract  of  decree.(a) 


Between 


Complainant, 


and 


Defendant. 


J 


In  Chancery  of  New  Jersey. 

Abstract  of  decree  to  be  filed 
and  recorded  under  an  act 
of  March  27th,  1874. 


A  final  decree  was  filed  in  the  above  cause,  against  the  de- 
fendant {or  "  defendants ")  therein,  in  favor  of  the  above  com- 


(a)  The  decree  of  the  Court  of 
Chancery  shall,  from  the  time  of  its 
being  signed,  have  the  force,  operation 
and  effect  of  a  judgment  at  law  in  the 
Supreme  Court,  from  the  time  of  the 
actual  entry  of  such  judgment ;  and 
all  decrees  and  orders  of  the  Court  of 
Chancery,  whereby  any  sum  of  money 
shall  be  ordered  to  be  paid  by  one 
person  to  another,  shall  have  the 
force,  operation  and  effect  of  a  judg- 
ment at  law  in  the  Supreme  Court, 
from  the  time  of  the  actual  entry  of 
such  judgment,  and  the  Chancellor 
maj'  order  such  executions  thereon 
as  in  other  cases ;  provided,  that  no 
decree  of  the  Court  of  Chancery  shall, 
as  against  any  person  not  a  party 
thereto,  become  a  lien  upon  or  bind 
any  lands,  tenements,  hereditaments  or 
real  estate  other  than  those  specific- 
ally mentioned  and  described  in  such 
decree  or  in  the  bill  of  complaint  on 
which  the  same  is  founded,  until  the 
parties  interested  in  such  decree,  or 
some  or  one  of  them,  shall  have  filed 
in  the  office  of  the  clerk  of  the  Su- 
preme Court,  a  statement  or  abstract 
of  such  decree,  containing  the  names 
of  all  the  parties  thereto,  designating 
particularly  those  against  whom  it  is 
rendered,  with  the  state  and  county 
in  which  they  respectively  resided, 
the  time  at  which  the  said  decree  was 
signed,  and  the  amount  of  the  debt, 


damages,  costs  or  other  sum  of  money 
thereby  directed  to  be  paid ;  which 
statement  or  abstract  the  said  clerk 
shall  forthwith  record  in  a  proper 
book,  which  book  shall  be  properly 
indexed,  and  be  a  public  record.  Pvcv., 
"Chancery"  ^  56.  Before  the  enact- 
ment of  what  is  now  the  first  clause  of 
the  fifty-sixth  section  of  the  chancery 
act,  (June  ISth,  1799,)  a  decree  for  the 
payment  of  money  not  chargeable  as 
a  specific  lien,  was  in  personam  only. 
The  act  of  June  13th,  1799,  was  not 
intended  to  embrace  all  decrees  and  to 
charge  all  the  lands  of  all  defendants 
with  their  performance,  but  applied 
only  to  decrees  as  resembled  judgments 
at  law  in  the  pecuniary  obligations 
they  imposed,  and  made  them  equiva- 
lent to  such  judgments  in  their  effects. 
The  proviso  of  the  fifty-sixth  section, 
before  cited,  was  designed,  under  just 
interpretation,  to  reach  only  the  de- 
crees which,  before  its  enactment,  had 
operated  as  judgments  in  the  Supreme 
Court,  and  made  the  docketing  of 
such  decrees  with  the  clerk  of  that 
court  a  condition  precedent  to  their 
constituting  against  all  persons,  liens 
upon  the  defendant's  lands;  but  lest 
the  general  language  of  the  act,  "  no 
decree  of  the  Court  of  Chancery," 
should  be  liable  to  misconstruction, 
those  creating  or  enforcing  equitable 
liens  on  lands  specifically  mentioned 


ABSTRACT  OF   DECREE. 


223 


plainant  {or  "complainants")  in  the  said  Court  of  Chancery 
of  New   Jersey,  on   the  day  of  ,  eighteen   hun- 

dred  and  .     The   defendant,  ,  resided,  at   the 

time  of  the  signing  of  the  said  decree,  and  still  resides,  [or  as 
the  case  may  be,)  in  the  county  of  ,  and  State  of  New 

Jersey,  and  the  defendant,  ,  resided,  at  the  same  time, 

&c.,  in  the  county  and  State  of  New  York,  {or  as  the  case  may 


and  described  in  the  decree  or  bill  of 
complaint  as  subject  thereto,  were 
expressly  excepted.  The  proviso  of 
the  fifty-sixth  section  (passed  origi- 
nally in  1839)  modified  the  law  of 
1799,  declaring  that  the  decree,  from 
the  time  of  its  being  signed,  should 
have  the  force  and  effect  of  a  judgment 
at  law  in  the  Supreme  Court,  from  the 
time  of  the  actual  entry  of  the  judg- 
ment, and  enacted  that  such  a  lien 
should  not  exist  until  the  docketing 
of  the  decree.  Close  v.  Close,  1  Stew. 
Eq.  472.  The  practice  of  the  Court  of 
Chancery,  under  a  decree  for  defi- 
ciency, is  to  follow  the  decree  by  an 
order  after  sale,  reciting  the  proceed- 
ings under  the  execution  and  the  ex- 
istence and  amount  of  the  deficiency, 
as  ascertained  by  the  statement  of  the 
officer  by  whom  the  writ  was  executed, 
and  an  award  of  execution  to  make 
the  amount,  with  interest  and  the  costs 
of  the  order  and  the  last-mentioned 
writ.  Mutual  Life  Ins.  Co.  v.  Southard, 
10  C.  E.  Gr.  337.  A  bona  fide  mort- 
gage, given  after  the  entry  of  a  per- 
sonal decree  of  the  Court  of  Chancery 
against  the  mortgagor  for  the  payment 
of  money  merely,  but  before  the  filing 
of  a  statement  or  abstract  of  the  de- 
cree in  the  Supreme  Court,  in  accord- 
ance with  the  fifty-sixth  section  of  the 
chancery  act,  is  entitled  to  priority 
over  the  decree.  Jersey  v.  Demarest, 
12  C.  E.  Gr.  299.  And,  see,  as  to  the 
construction  of  the  fifty-sixth  section 


of  the  chancery  act,  lb.  In  foreclo- 
sure cases,  a  personal  decree  for  defi- 
ciency does  not  become  a  lien  upon 
the  real  property  of  the  person  against 
whom  it  is  taken,  until  after  the  sale, 
and  a  deficiency  is  found  to  exist. 
The  Chancellor  has  adopted  the  lan- 
guage of  the  court  in  Chapin  v. 
Broder,  16  Cal.  403,  where  it  is  said 
that  no  general  lien  was  acquired  by 
the  docketing  of  the  judgment,  before 
the  amount  to  be  recovered  by  it  is 
ascertained  and  fixed ;  and  that  so 
long  as  the  matter  of  personal  lia- 
bility was  contingent,  indefinite  and 
uncertain,  no  effect  whatever  could  be 
given  to  the  judgment  by  docketing  it. 
See  Bell  v.  Gilmore,  10  C.  E.  Gr.  104 ; 
Mutual  Life  Ins.  Co.  v.  Southard,  Id. 
337.  In  the  case  last  cited,  the  ques- 
tion was  as  to  the  priority  of  lien 
between  a  decree  docketed  in  the 
Supreme  Court,  where  there  had  been 
no  ascertainment  of  the  amount  of  the 
deficiency,  and  a  mortgage  registered 
subsequent  to  the  final  decree  in  the 
cause.  A  decree  directing  a  defend- 
ant to  pay  a  certain  sum  of  money  to 
the  complainant  and  declaring  that  it 
shall  constitute  a  lien  upon  all  the 
defendant's  real  and  personal  prop- 
erty in  New  Jersey,  creates  no  lien 
upon  lands  as  against  persons  not  par- 
ties thereto  until  an  abstract  thereof 
is  filed  in  the  Supreme  Court.  Close 
V.  Close,  supra. 


224  FORMS   OF   PLEADINGS. 

be.)    {And  if  the  defendant  be  a  corporation^  say  "  the  defendant, 
,  is  a  corporation  of  the  State  of  New  Jersey,  located  at," 
&c.)     The  amount  decreed  to  be  paid  to  the  complainant  {or 
"  complainants ")  by  the  decree  aforesaid,  is  dollars  and 

cents,  with  lawful  interest  thereon,  to  be  computed  from 
the  day  of  ,  eighteen  hundred  and  ,  and  the 

costs  of  suit,  which  have  been  taxed  at  the  sum  of  dollars 

and  cents.     {In  case  of  a  decree  for  deficiency  in  a  fore- 

closure suit,  add :)  And  it  was  further,  by  said  decree,  ordered, 
adjudged  and  decreed,  that  in  case  the  proceeds  of  sale  be  not 
sufficient  to  pay  the  said  mortgage  debt  to  the  said  complainant 
{or  "  complainants  ")  that  the  said  ,  defendants,  {naming 

them,)  severally  do  pay  such  deficiency,  and  that  the  complain- 
ant {or  "  complainants ")  do  recover  the  same  against  him  {or 
"  them." 

And  by  the  further  order  of  said  Court  of  Chancery,  bearing 
date  the  day  of  ,  in  the  year  of  our  Lord  eighteen 

hundred  and  ,  such  deficiency  was  ascertained  and  ad- 

judged to  be  the  sum  of  dollars  and  cents,  together 

with  interest   thereon  from   the  day  of  ,  eighteen 

hundred  and 

The  foregoing  abstract  and  statement  of  the  final  decree,  "  and 
order  directing  such  deficiency  to  be  paid,"  in  the  foregoing  suit, 
are  made  to  the  end  that  the  same  may  be  recorded  by  the  clerk 
of  the  Supreme  Court  in  his  office,  in  pursuance  of  the  fifty- 
sixth  section  of  the  act  of  the  legislature  of  this  state  entitled 
"An  act  respecting  the  Court  of  Chancery,"  approved  March 
twenty-seventh,  eighteen  hundred  and  seventy-four. 

{Signature  of  solicitor.) 

Fieri    facias    for    deficiency.     New   Jersey,  to  wit — 
The  State  of  New  Jersey  to  the  sheriff  of  the  county  of 
— Greeting : 

Whereas,  on  the  day  of  ,  in  the  year  of  our 

Lord  eighteen  hundred  and  ,  by  a  certain  decree  made 

in  our  Court  of  Chancery,  before  our  Chancellor,  at  Trenton,  in 
a  certain  cause  therein  depending,  wherein  it  was  ordered,  ad- 
judged and  decreed,  that  certain  mortgaged  premises,  in  the  bill 


EXECUTION    FOR   DEFICIENCY.  225 

of  complaint  in  the  said  cause  particularly  set  forth  and  described, 
together  with  all  and  singular  the  appurtenances  to  the  same 
belonging,  be  sold  to  pay  and  satisfy  unto  the  said  complainant 
the  sum  of  ,  with  interest,  and  also  the  costs  of  the  said 

complainant,  which  have  been  taxed  at  the  sum  of  ;  and 

that  a  writ  of  fieri  facias  should  issue,  directed  to  the  sheriff  of 
,  commanding  him  to  make  sale  as  aforesaid ;  and  whereas, 
by  a  certain  order  made  in  said  cause,  bearing  date  the 
day  of  ,  eighteen  hundred  and  ,  it  is  recited  that  the 

said  sheriff  has  duly  executed  the  said  writ,  and  has  made  return 
thereof  to  this  court,  with  his  proceedings  thereon,  whereby  it 
appears  that  the  proceeds  of  said  sale  were  insufficient  to  satisfy 
and  discharge  said  mortgage  debt,  and  that  the  said  deficiency  is 
the  sum  of  ,  and  that  the  bill  of  complaint  in  said  cause 

specifically  prayed  that  the  defendant,  ,  might  be  held 

liable  to  make  good  such  deficiency,  and  that  notice  that  such 
relief  was  sought  by  said  bill  has  been  given  to  said  defendants, 
,  according  to  the  rules  and  practice  of  this  court ;  and 
it  was  ordered,  that  a  writ  of  fieri  facias  do  issue,  to  levy  and 
make  the  said  deficiency,  together  with  interest  thereon  from  the 
day  of  ,  eighteen  hundred  and  ,  of  the  goods 

and  lands  of  the  said  defendant,  ,  together  with  the  costs 

of  said  order  and  of  this  writ. 

Therefore,  we   command   you   that,  without   delay,  you  do 
cause  to  be  made  of  the  goods  and  chattels  of  the  said 
in  your  county,  the  said  sum  of  ,  with  interest  thereon  as 

aforesaid,  and  also  the  costs  of  said  order  and  of  this  writ ;  and 
if  sufficient  goods  and  chattels  of  the  said  defendant,  ,  in 

your  county  you  cannot  find,  whereof  to  make  the  said  sum  of 
money,  then  and  in  that  case  we  command  you  that  of  the  lands, 
tenements,  hereditaments  and  real  estate  of  the  said  defendant, 
,  in  your  county,  whereof  seized  on  the  day 

of  ,  eighteen  hundred  and  ,(a)  or  at  any  time  after- 

wards, in  whosesoever  hands  the  same  may  be,  you  do  cause  to 
be  made  the  whole  or  the  residue  of  the  said  sum  of  and 

(a)  The  date  of  the  filing  of  the  abstract  in  the  Supreme  Court. 

P 


226  FORMS  OF  PLEADINGS. 

of  the  said  costs,  apd  that  you  do  pay  the  said  sum  of  money  so 
by  you  to  be  levied  and  made,  to  the  said  complainant  or  to  his 
solicitor,  and  that  you  do  pay  the  surplus  money,  if  any  there 
be,  to  the  clerk  of  this  court,  to  abide  the  further  order  of  the 
court;  and  have  you  this  writ,  with  your  proceedings  thereon, 
before  our  Chancellor,  in  our  Court  of  Chancery,  at  Trenton,  on 
the  Tuesday  of  next. 

Witness  ,  our  Chancellor,  at   Trenton  aforesaid,  the 

day  of  ,  in  the  year  of  our  Lord  eighteen  hundred 

and  .  Clerh. 

Solicitor. 

Petition  for  new  execution  on  death  of  sheriff. (a) 

( Title  of  cause.) 

The  petition  of  ,  complainant  in  the  above-stated  cause, 

respectfully  shows,  that  on  or  about  the  day  of  , 

in  the  year  eighteen  hundred  and  ,  a  final  decree  was 

made  in  the  above-entitled  cause ;  that  on  or  about  the 

(a)  "When  any  sheriff  or  other  per-  to  the  sheriff  of  the  proper  county,  or 
son,  to  whom  any  writ  of  execution  to  one  of  the  masters  of  said  court, 
issuing  out  of  the  Court  of  Chancery  commanding  him  to  proceed  to  dis- 
shall  be  directed  and  delivered,  shall  charge  the  exigencies  of  said  writ  in 
die,  or  become  disabled  by  law,  to  the  same  manner  as  such  officer  so 
discharge  the  duties  of  his  office  or  dying,  becoming  disabled  or  removing 
appointment,  or  shall  remove  out  of  as  aforesaid,  was  commanded  in  and 
the  state,  and  continue  to  reside  there-  by  said  writ  to  do ;  and  any  proceed- 
out,  without  discharging  the  duties  of  ing  had  by  such  officer  to  whom  such 
his  office  or  appointment  in  relation  writ  shall  be  directed  and  delivered, 
to  the  command  of  said  writ,  then,  or  shall  be  as  good,  valid  and  effectual  as 
in  either  of  said  cases,  it  shall  and  if  the  said  execution  first  issued  had 
may  be  lawful  for  the  court,  upon  a  been  originally  directed  to  him ;  and 
petition  being  presented  setting  forth  such  sheriff  or  master  shall  be  enti- 
the  facts  above  mentioned,  and  veri-  tied  to  the  same  fees  for  services  done, 
fied  to  the  satisfaction  of  the  court,  and  be  subject  to  the  same  suits,  pen- 
and  upon  due  notice  being  given  to  alties,  amercements  and  proceedings 
any  party  who  has  entered  an  appear-  for  neglect  of  duty  as  if  the  said  exe- 
ance  in  the  suit,  or  in  whose  behalf  cution  had  been  originally  directed 
the  decree  was  made,  to  award  and  and  delivered  to  such  sheriff  or  mas- 
order  another  execution  to  be  directed  ter.     Rev.  Sup.,  "Chancery,"  §  5. 


EXECUTION.  227 

day  of  ,  in  the  year  eighteen  hundred  and  ,  a  writ 

of  execution  thereon  was  duly  issued  out  of  the  Court  of  Chan- 
cery, directed  to  the  sheriff  of  the  county  of  ,  command- 
ing him  to  make  sale  of  certain  mortgaged  premises  therein 
particularly  described,  for  the  purpose  of  raising  and  satisfying 
the  several  sums  of  money  therein  mentioned  and  specified, 
decreed  to  be  due  the  persons  therein  designated ;  that  on  or 
about  the  day  of  ,  in  the  year  eighteen  hundred  and 
,  said  writ  of  execution  was  delivered  to  ,  then 
being  sheriff  of  the  county  of  ,  who  thereupon  proceeded 
to  the  execution  thereof,  and  duly  advertised  the  said  lands  and 
premises  therein  mentioned  and  described,  to  be  sold ;  that 
pending  the  execution  of  said  writ,  and  before  the  sale  of  said 
premises,  on  the  day  of  ,  in  the  year  eighteen  hun- 
dred and  ,  the  said  ,  sheriff  as  aforesaid,  died  with- 
out fully  discharging  the  duties  of  his  office  in  relation  to  said 
writ. 

Your  petitioner  therefore  prays,  that  another  execution  may 
be  awarded  and  ordered  by  this  honorable  court,  to  be  directed 
to  ,  one  of  the  masters  of  the  Court  of  Chancery,  com- 

manding him  as  said  ,  deceased,  sheriff  as  aforesaid,  was 

commanded  in  and  by  said  former  writ. 

Your  petitioner  further  prays,  that  he  may  be  allowed  the 
execution  fees  and  charges  accrued  to  the  said  ,  deceased, 

sheriff  as  aforesaid,  on  his  proceedings  in  the  execution  of  said 
writ,  together  with  the  costs  of  this  application,  and  that  he  may 
have  such  other  relief  as  he  may  be  equitably  entitled  to. 

And  your  petitioner  will  ever  pray. 

Solicitor  and  counsel  of  petitioner. 

{Affidavit  to  be  annexed.) 

State  of  New  Jersey,    1 
county  of  ,    /     * 

,  being  duly  sworn  according  to  law,  on  his  oath  says — 
that  he  is  the  petitioner  in  the  foregoing  petition  named; 
that  the  matters  and  things  therein  stated  are  true,  and  that  said 


228  FORMS  OF   PLEADINGS. 

,  late  sheriff,  died  without  executing(a)  the  writ  of  execu- 
tion issued  in  the  above-stated  cause,  and  to  him  directed  and 
delivered. 

Sworn  and  subscribed  before  me, 
at  ,  this  day  of  , 

A.  D.  18     . 

Affidavit  to  accompany  foregoing  petition. 

State  of  New  Jersey,    1 
county  of  ,    J 

,  being  duly  sworn  according  to  law,  on  his  oath  says — 
that  during  the  term  of  office  of  as  sheriff  of  the  county 

of  ,  he  was  a  deputy  sheriff  of  said  county ;  that  on  the 

day  of  ,  one  thousand  eight  hundred  and  ,  a 

writ  of  execution  issued  in  the  above-stated  cause  was  delivered 
to  the  said  ,  then  being  sheriff  of  said  county  of  ; 

that  pursuant  to  the  command  of  said  execution,  said  sheriff 
proceeded  to  advertise  the  premises  therein  mentioned  and 
described,  for  sale;  that  before  a  sale  of  said  premises  was 
effected,  and  on  the  day  of  ,  A.  d.  18     ,  said 

died  without  discharging  the  duties  of  his  office  in  relation  to 
the  command  of  said  writ ;  that  in  proceeding  to  execute  said 
writ,  said  sheriff,  now  deceased,  became  entitled  by  law  to 
receive  the  sum  of  dollars  and  cents,  as  for  his 

execution  fees,  in  which  is  included  the  sum  of  dollars  by 

him  disbursed  for  printers'  fees  for  advertising  sale  of  said 
premise  described  in  said  writ. 

Sworn  and  subscribed  before  me, 
at  ,  this  day  of  , 

A.  D.  18     . 

Notice  under  foregoing  petition.    Take  notice,  that  I 
shall  present  to  the  Chancellor  of  this  state,  at  the  ,  in 

the  city  of  ,  on  ,  the  day  of  next  {or 

(a)  To  execute  the  writ  in  the  sense      done.    Waterman  v.  Merrill,  4  Vr.  378  p 
of  the  statute,  {Rev.,  "Sheriffs,")  is  to      Scott  v.  Dow,  2  Or.  350. 
do  all  that  the  writ  commands  to  be  ' 


EXECUTION.  229 

"instant,")  at  A.  M.,  a  petition  setting  forth  the  fact  that  the 

sheriff  to  whom  the  writ  of  execution  issued  in  this  cause  was 
directed  and  delivered,  has  died  without  discharging  the  duties 
of  his  office  in  relation  to  the  command  of  said  writ,  and  shall 
thereupon  apply  to  the  court  to  award  and  order  another  execu- 
tion, to  be  directed  to  one  of  the  masters  of  the  Court  of  Chan- 
cery, commanding  him  to  proceed  to  discharge  the  like  exigencies 
in  the  same  manner  as  required  of  said  sheriff  in  and  by  said 
writ  to  him  directed. 

Dated,  ,18     .  Solicitor. 

To 

Order  for  new  execution  in  case  of  death  of  a 
sheriff. 

(Title  of  cause.) 

Upon  reading  and  filing  the  petition  of  the  said  ,  duly 

verified  to  the  satisfaction  of  this  court,  setting  forth,  amongst 
other  things,  that  on  the  day  of  ,  one  thousand 

eight  hundred  and  ,  a  writ  of  execution  was  issued  out 

of  this  court  upon  the  final  decree  before  that  time  made  in  the 
above- stated  cause,  directed  to  the  sheriff  of  the  county  of  , 

commanding  him  to  make  sale  of  the  mortgaged  premises  in  the 
said  writ  particularly  described,  for  the  purpose  of  raising  and 
satisfying  certain  sums  of  money  therein  mentioned  and  speci- 
fied, which  writ  of  execution  was  on  the  day  of  , 
one  thousand  eight  hundred  and  ,  delivered  to  , 
then  being  sheriff  of  the  county  of  ,  who  thereupon  pro- 
ceeded to  the  execution  thereof,  and  advertised  the  said  premises 
for  sale ;  and  that  said  sheriff  has  died  without  discharging  the 
duties  of  his  office  in  relation  to  the  command  of  said  writ,  and 
it  appearing  that  due  notice  of  this  application  has  been  given 
to  each  of  the  parties  defendant  in  this  cause,  and  no  cause  being 
shown  or  appearing  to  the  contrary  :  It  is  thereupon,  on  this 
day  of  ,  one  thousand  eight  hundred  and  , 
on  motion  or  behalf  of  the  petitioner,  ordered,  that  said  writ  of 
execution  be  delivered  to  the  clerk  of  this  court,  and  that 
another  writ  of  execution  do  issue  out  of  this  court,  in  place 


230  iiOKMS   OF   PLEADINGS. 

thereof,  to  be  directed  to  ,  one  of  the  masters  of  this  court, 

commandiDg  him  as  the  said  sheriff,  now  deceased,  was  in  and 
by  said  former  writ  commanded. 

It  is  further  ordered,  that  in  addition  to  the  sums  due  the 
complainant  for  his  debt  and  costs  of  suit,  said  master  be 
directed   to  make  the  sum  of  dollars  and  cents, 

for  the  execution  fees  accrued  to  said  deceased  sheriff  on  said 
writ,  the  same  appearing  to  be  due  by  the  affidavit  of  , 

deputy  sheriff,  now  on  file,  together  with  the  costs  of  this  order. 

Advertisement  in  newspapers  of  the  adjournment 
of  sale.(a) 

SHERIFFS  OR  MASTER'S  SALE. 

In  Chancery  of  New  Jersey. 
Between  ,  complainant,  and  and  others,  defendants. 

Fi.fa,  for  sale  of  mortgaged  premises. 
The  sale  of  the  lands  and  premises  in  the  above- stated  cause 
stands  adjourned  until  ,  the  day  of  next,  (or 

as  the  case  may  be,)  at  two  o'clock  p.  m.,  at  ,  in  the  city 

of  ,  {or  as  the  ease  may  be.) 

Dated,  &c.  {Signature  of  officer.) 

Conditions  of  sale.(6)  Conditions  of  the  sale  of  land, 
made  on  the  day  of  ,  &c.,  by  ,  sheriff  of  the 

(a)  If  any  sale  of  lands     *     *     *  (5)  Execution  sales,  in  the  absence 

be  adjourned  for  more  than  one  week,  of  any   memorandum   of   the   officer 

such  adjournment  shall  be  published  selling,    are    considered    within    the 

in  the  same  two  newspapers  in  which  statute  of  frauds.     4  Kent  Com.  434. 

the  notice  of  sale  was  published,  for  Such  sales   by  the   sheriff  are  made 

the  publication   of   which   not  more  under  the  law  and  not  under  the  direc- 

than  five  dollars  shall  be  allowed  in  tion  of  the  court,  and  not  being  sales 

any  case  as  against  the  defendant  in  of    the   court,   as   are   judicial    sales 

execution  ;  in  publishing  the  adjourn-  strictly  such,  which  require  confirma- 

ment,  it  shall  not  be  necessary  to  con-  tion  by  the  court  to  complete  them, 

tinue  the  publication  of  the  original  they    are    within    the    statute.      See 

advertisement  of  sale,  but  a  statement  Arnold  v.  Smith,  5  Mason  C.  C.  414. 

of  the  parties  to  the  cause,  and  the  The  statute  prohibits  the  maintenance 

time  and  place  of  such  adjournment,  of  an  action  upon  a  contract  for  the 

shall   be  sufficient.      Rev.,   "  Sale    of  sale  of  lands,  unless  the  agreement  or 

Land,"  §  6.  some  memorandum  or  note  thereof  be- 


EXECUTION.  231 

county  of  ,  (or,  "  by  ,  one  of  the  masters  in  chan- 

cery of  New  Jersey,")  by  virtue  of  an  execution  issued  out  of 
the  Court  of  Chancery  of  New  Jersey  in  a  suit  wherein 
is  complainant,  and  and  others,  are  defendants  : 

1.  The  highest  bidder  ("for  each  lot  sold")  shall  be  the 
purchaser,  and  shall,  immediately  after  the  sale,  sign  his  name 
to  an  acknowledgment  of  his  purchase,  and  pay  per  cent, 
of  the  purchase  money. 

2.  A  deed  will  be  delivered  to  the  purchaser  on  the 

day  of  next  (or  "  instant,")  at  ,  at  o'clock  in 

the  noon,  (provided  such  sale  shall  have  been  confirmed 

by  the  xjourt  or  as  soon  thereafter  as  the  sale  shall  have  been 
confirmed,)  when  and  where  the  purchaser  shall  pay  the  balance 
of  the  purchase  money,  in  cash. 

3.  The  purchaser  shall  be  liable  for  the  payment  of  the  pur- 
chase money,  whether  he  attends  and  receives  his  deed  at  the 
time  and  place  aforesaid  or  not;  and  in  case  he  neglects  to 
receive  the  deed  and  pay  the  purchase  money  as  aforesaid,  the 
property  will  be  advertised  and  sold  again ;  and  if  it  produce  a 
less  sum  than  the  former  bid,  and  interest  and  expenses,  the 
purchaser  will  be  held  liable  for  the  diiference ;  and  if  it  bring 
a  larger  sum,  he  shall  not  be  benefited  thereby. 

in  writing.     Courts  of  equity  are  as  to  sell  according  to  law  and  the  exi- 

much  bound  by  the  provisions  of  the  gency  of  his  writ ;  he  is  not  justified 

statute  as  courts  of  law,  and  are  not  at  in  imposing  terms  on  the  purchaser 

liberty  to  disregard  them.     Brewen  v.  different  from  those  required  by  the 

Wilson,  2  C.  -£'.  Gr.  180.     There  is  no  law.     If  he  undertakes,  by  any  condi- 

difference  between  a  sale  by  a  sheriff  tions  of  sale,  to  vary  the  relative  posi- 

under  an  execution  out  of  chancery  tions  of  parties  and  create  liabilities 

on  a  foreclosure,  and  that  of  an  officer  which  the  law  does  not   impose,  he 

or  individual  selling  under  any  power  exceeds  his  authority,  and  the   pur- 

,or  authority  not  coupled  with  an  in-  chaser   is   not    bound.      Stevenson  v. 

terest.    Townshend  v  Simon,  9  Vr.  239.  Black,  Sax.  338      Sherifis  and  other 

The  officer  himself,  and  not  the  bid-  officers  who  sell  land  by  virtue  of  an 

ders,  is  to  fix  the  terms  of  sale.    Swope  order   in   pursuance   of   our   statutes, 

V.  Ardery,  5  Ind.  215 ;    Chapman  v.  having  no  interest,  execute  a  naked 

Harwood,  8  Blackf.  82.    See  Chancellor  power,  under  a  special  authority,  which 

V.  Gumviere,  12  Stew.  Eq.  582 ;  S.  C,  must  be  strictly  pursued.    Wortman  v. 

13  Stew.  Eq.  279.    The  sheriff  is  bound  Skinner,  1  Beas.  387. 


232  FOEMS  OF  PLEADINGS. 

[Or  instead  of  the  third  condition  the  following  may  be  substi- 
tuted:) 

3.  The  purchaser  will  be  held  bound  by  the  purchase  whether 
he  attends  to  receive  the  deed  and  comply  with  the  conditions  of 
sale  or  not.  If  he  does  not  so  comply  with  them,  the  property 
may  be  again  advertised  and  sold  or  the  purchaser  may  be  held 
liable  for  his  bid,  at  the  option  of  the  (ojicer.)  In  case  of 
resale  at  a  less  price  than  the  former  bid,  with  interest  and 
expenses,  the  former  purchaser  will  be  held  liable  for  the 
deficiency,  to  meet  which  the  money  paid  by  him  shall  be 
retained  and  applied  by  the  [officer.) 

[Signature  of  sheriff.) 

I  acknowledge  myself  to  be  the  purchaser  of  the  property 
sold  this  day  under  the  above-mentioned  execution,  at  the  price 
of  dollars,  subject  to  the  foregoing  conditions. 

Dated  ,18     .  [Signature  of  pur  chaser. )[a) 

[If  the  property  shall  be  sold  in  lots  or  parcels,  and  there  are 
several  purchasers  of  different  lots,  the  description  of  the  property 
in  the  memorandum  of  sale  at  the  foot  of  the  conditions  will  be  as 
follows :) 

Lot  No.  1.  Being,  &c.,  [describe  it  shortly.) 

Lot  No.  2.  [And  so  on  as  to  all  the  lots  or  parcels  ) 

(a)  In  Townshendv.  Simon,  ubi  supra,  Force  v.  Dutcher,  3   C.  E.   6r.  401; 

it  was  held  that  an  action  at  law  lies  Wdsh  v.  Bayaud,  6  C.  E.   Gr.  186. 

at  the  suit  of  the  sheriff  on  a  writ-  And  the  names  of  the  buyer  and  seller. 

ten  acknowledgment   of  purchase  at  Johnson  v.  Buck,  6  Vr.  339.     It  need 

sheriff's  sale,  signed  by  the  purchaser,  not  be  subscribed  by  the  party  to  be 

when  the  purchaser  refuses  to  comply  binding ;  a  signing  anywhere  in  the 

with  the  conditions  of  sale.     See  also  instrument  is  sufficient,  and  such  sig- 

Ely  V.  Perrine,  1  Gr.  Ch.  396 ;  Silver  nature  may  be  evidenced  by  the  ini- 

V.   Campbell,  10  O.  E.  Gr.  465,  and  tials  of  the  party's  name.      Smith  v. 

Bowne  v.  Bitter,  11  0.  E.  Gr.  456.    An  Howell,  3  St«ck.  349.  .A  signing  by  the 

agreement  or   memorandum   for   the  hand  of  another  is  sufficient.     Stevens 

sale  of  land  must  designate  with  cer-  v.  Vancleve,  4  Wash.  C  C.  262.     Or 

tainty  the  lands  to  be  sold,  as  well  as  by  an  auctioneer's  clerk.     Johnson  v. 

the  price.     Carr  v.  Pass.  Imp.  Co.,  4  Buck,  supra. 
a  E.  Gr.  424 ;  S.  C,  7  C.  E.  Gr.  85 ; 


EXECUTION. 


233 


Sheriff's  or  master's  statement. (o) 

In  Chancery  of  New  Jersey. 

trpui     /  \  1  Oo  Fi.  Fa.  for 

( Title  of  cause.)  }      ^      r         ^        a 

}    sale  01  mortgaged  premises. 

Returnable  Terra,  18     . 

Decree  for  complainant $ 

Interest  from  ,18     ,  to  ,18     

Costs  of  complainant  taxed  at 

Interest  from  ,  18     ,  to  ,18     ...  

Decree  for  defendant,  

Interest  from  ,  18     ,  to  ,18     

Costs  taxed  at 

Interest  from  ,  18     ,  to  ,18     

Sheriffs  execution  fees 

Total S 

Proceeds  of  sale 

Decree  for  complainant,  as  above $ 

Proceeds  of  sale,  less  execution  fees 

Deficiency  {date) $ 

(a)  In  case  of  a  sale  on  execution,  Rev.,  "Sheriffs,"  §  25,    The  purchaser 

made  by  a  sheriff,  under-sheriff,  coro-  will  not  be  prejudiced  by  omission  of 

ner  or  other  ofiicer,  he  shall,  within  the  officer  to  return  and  file  a  certifi- 

thirty    days    thereafter,    file    in    the  cate  of  sale;   under  the  statute,  the 

clerk's  office  of  the  court  out  of  which  requirement   is  only  directory.      See 

the  execution  issued,  a  true  statement  Jackson  v.  Young,  5  Cowen  269.   Every 

and  calculation,  in  order  of  time,  of  sheriff  shall  make  return  of  his  exe- 

the   execution   or    executions   in   his  cution,  and  pay  to  the  clerk  of  the 

hands  upon  which  such  sale  was  made,  court  any  surplus  in  his  hands  within 

and  the  amount  due  thereon,  respect-  thirty  days  after  sale ;  and  no  execu- 

ively,  at  the  time  of  such  sale,  men-  tion  shall  hereafter  be  directed  to  any 

tioning  the  time  or  times  of  sale,  as  sheriff  while  he  shall  be  in  default  in 

also   the   amount    of    sales    certified  either  of  the  above  respects ;  and  any 

under  his  hand,  together  with  his  bill  sheriff,  who   shall   pay  over   to   any 

of  costs  or  execution  fees ;  provided,  defendant    named    in    an    execution 

that  such  statement  so  filed  shall  not  any  money  raised  by  him  on  the  same, 

be  conclusive  against  any  person  other  unless  so  directed  by  the  writ,  or  by 

than  such  officer ;  and  provided,  that  an  order  of  the  court  afterwards  made, 

if  there  be  more  sales  than  one,  such  shall  have  no  allowance  for  the  same, 

statement  shall   be   made    and    filed  Rule  117. 
•within  thirty  days  after  the  final  sale. 


234 


FORMS   OF    PLEADINGS. 


Return  of  writ,(a) . .  4 

Advertising  sale,(6), 

Adj'nm't  (eaeh)(c)... 

Advertisiog  adjourn- 
ment, not  more 
than         (d) 

Crier's  fee,(e) 

Drawing  and  making 
deed,(/) 

Affid't  and  certificate 
of  master,  &c.,{g) 

Commi8sions,(A) 

Statement,(i) 


By  virtue  of  the  annexed  writ,  I 
did,  on  the  day  of  ,  18     , 

sell  at   public  vendue,  at  , 

having  first  duly  advertised  the 
same,  the  land  and  premises  de- 
scribed in  said  writ,  to  ,  for 
the  sum  of  dollars,  he  being 
the  highest  bidder  therefor.  The 
amount  remaining  due  to  the  com- 
plainant by  virtue  of  said  writ,  at 
this  date,  is        dollars  and        cents. 

I  hereby  certify  that  the  fore- 
going statement  and  calculation  are 
true  and  correct. 

Dated,  &c. 

(Signature  and  addition.){j) 


(a)  Bev.,  "Fees  and  Costs,"  p.  404. 

(b)  Id.,  p.  405 ;  Rev.,  "Sale  of  Land," 
^  2 ;  as  to  rate  for  legal  advertising, 
see  Rev.,  "Fees  and  Costs,"  |  26,  p. 
413;  Anon.,  2  Zab.  211. 

(c)  Id.,  p.  405.  No  more  than  two 
adjournments  allowed,  except  by  per- 
mission, in  writing,  of  complainant 
in  execution.  Rev.,  "Sale  of  Land," 
§  5.  The  legal  price  of  the  advertise- 
ment to  be  published  therewith.  Rev., 
"Fees  and  Costs,"  I  27,  p.  413. 

(d)  If  the  sale  be  adjourned  for 
more  than  one  week,  such  adjourn- 
ment to  be  published,  for  which  not 
more  than  five  dollars  is  to  be  allowed 
in  any  case  against  the  defendant  in 
execution.     Rev.,  "Sale  of  Lund,"  ?  6. 

(e)  Rev.,  "Fees  and  Costs,"  p.  405. 
(/)  lb.    A  sheriff,  on  sale  of  lands, 

cannot  charge  to  the  defendant  the  fee 
for  acknowledging  the  sheriff's  deed. 
Anon.,  2  Zab.  211. 

(g)  Rev.,  "Sale  of  Land,"  ^  13. 

(A)  On  all  sums  not  over  one  thou- 
sand dollars,  two  per  cent,  on  the 
amount  of  sales  ;  if  over  one  thousand 


dollars,  and  not  more  than  three  thou- 
sand dollars,  one  per  cent,  on  such 
excess ;  if  over  three  thousand  dollars, 
one-half  of  one  per  cent,  of  such  ex- 
cess; when  the  execution  is  settled 
without  actual  sale,  and  such  settle- 
ment is  manifested  to  the  officer,  he 
is  entitled  to  one-half  the  amount  of 
percentage  allowed  in  cases  of  sale. 
Rev.,  "Fees  and  Costs,''  p.  405.  If  the 
proceeds  of  the  property  exceed  the 
amount  of  the  claims,  directed  by  the 
execution  to  be  raised,  the  sheriff  or 
other  oflScer  is  entitled  to  centage 
only  on  the  gross  amount  raised  for 
the  parties.  See  Black  v.  Ely,  1  Hal. 
232;  Sinnickson  v.  Gale,  1  Harr.  21. 

(i)  Rev.,  "Fees  and  Costs,"  p.  405, 
Every  sheriff  shall,  at  the  expiration 
of  his  term  of  office,  turn  over,  in 
writing  under  his  hand  and  seal,  all 
writs  unexecuted,  to  the  succeeding 
sheriff,  who  shall  execute  and  return 
the  same.     Rev.,  "Sheriffs,"  I  35. 

(j)  Sheriffs  and  other  oflScers, 
whose  duty  it  shall  be  to  make  return 
of  any  writ  or  process,  shall  put  their 


REPORT   OF   SALE. 


235 


Sheriff's  report  of  sale  of  mortgaged  premises. (a) 

( Title  of  cause. ) 
To  his  Honor,  ,  Chancellor  of  the  State  of  New  Jersey : 

I,  ,  sheriff  of  the  county  of  ,  do  hereby  respect- 

fully report  that  I  did,  on  the 


day  of 


,  eighteen 


own  names  to  the  return  of  such  writ 
or  process,  so  that  the  court  may  know 
of  whom  they  receive  such  return; 
and  any  sheriff  or  other  officer,  who 
shall  not  sign  such  return,  shall  be 
amerced,  and  also  answer  damages  to 
the  party.  Bev.,  "Sheriffs,"  I  17  ;  see 
Allen  V.  Smith,  7  Hal.  159 ;  Meyer  v. 
Patterson,  1  Steiv.  Eq.  239. 

(a)  In  all  foreclosnre  proceedings, 
the  sheriff  or  other  officer  who  may 
be  directed  to  sell  any  mortgaged 
premises,  shall,  after-  making  such 
sale,  report  the  same  within  five  days 
thereafter  to  the  court  out  of  which 
an  execution  or  order  to  sell  is  issued, 
stating  the  name  of  the  purchaser  or 
purchasers  and  the  price  obtained, 
and  if  the  said  court  or  a  judge  thereof 
shall  approve  of  such  sale,  he  or  it  shall 
confirm  the  same  as  valid  and  effectual 
in  law,  and  shall,  by  rule  of  court, 
allowed  in  open  court,  or  by  a  judge 
thereof  at  chambers,  direct  the  said 
sheriff  or  other  officer  to  execute  a 
good  and  sufficient  conveyance  in  law 
to  the  purchaser  or  purchasers  for  the 
mortgaged  premises  so  sold ;  provided, 
that  no  sale  of  mortgaged  premises 
shall  be  confirmed  by  the  court  or 
further  proceedings  had  until  the 
colirt  or  such  judge  is  satisfied  by  evi- 
dence that  the  property  has  been  sold 
at  the  highest  and  best  price  the  same 
would  then  bring  in  cash,  and  such 
evidence  may  be  in  the  form  of  affi- 
davits.    JRev.  Sup.,  "Mortgages,"  §  4. 

The  sheriff  or  other  officer  *  *  * 
shall,  within  five  days  after  the  sale, 


report  it  to  the  Court  of  Chancery  in 
writing,  stating  the  name  of  the  pur- 
chaser and  the  price  obtained ;  and 
he  shall  accompany  the  report  with 
his  affidavit  that  the  price  was  the 
best  the  property  would,  at  the  time 
of  sale,  bring  in  cash ;  and  unless  writ- 
ten objection  to  the  confirmation  of 
the  sale  be  filed  within  five  days  from 
the  expiration  of  the  time  limited  for 
filing  the  report,  if  the  report  be  duly 
filed  within  the  time  limited  by  law ; 
and  this  rule  (and  if  the  report  be 
not  so  filed,  then  within  five  days 
from  the  filing  thereof,)  an  order, 
which  shall  be  an  order  of  course, 
confirming  the  sale  as  valid  and 
effectual  in  law,  and  directing  the  offi- 
cer by  whom  the  sale  was  made,  to 
execute  a  good  and  sufficient  convey- 
ance in  law  to  the  purchaser  for  the 
mortgaged  premises,  may  be  entered 
after  the  expiration  of  the  time  lim- 
ited for  making  objections.  If  objec- 
tions shall  be  filed,  the  question 
whether  the  property  was  sold  for  the 
best  price  that  could  be  obtained  for 
it  in  cash,  shall  be  disposed  of  sum- 
marily by  the  court  on  affidavits  or 
depositions.     Rule  208. 

The  legislature  did  not  intend,  by 
the  above  act,  to  authorize  the  court  to 
protect  the  property  from  sacrifice  by 
setting  aside  sales  until  an  adequate 
price  had  been  obtained  for  it.  Del., 
L.  &  W.  R.  R.  Co.  V.  Scranton,  7  Stew. 
Eq.  429;  Mut.  Ben.  Life  Ins.  Co.  v. 
Gould,  7  Stew.  Eq.  417;  Guarantee 
Trust  Co.  V.  Jenkins,  13  Stew.  Eq.  451. 


236  FORMS   OF   PLEADINGS. 

hundred  and  ,  eell  at  public  vendue,  at  ,  (having 

first  duly  advertised  the  same,)  the  lands  and  premises  described 
in  the  writ  of  execution  issued  to  me  in  the  above-stated  cause, 
to  ,  of  the  of  ,  county  of  and  State  of 

New  Jersey,  for  the  sum  of  ,  he  being  the  highest  bidder 

therefor. 

Respectfully  submitted,  this  day  of  ,  A.  D.  eigh- 

teen hundred  and 

{Signature  of  sheriff.) 
State  of  New  Jersey,    1 
county,  J 

,  of  full  age,  being  duly  sworn  according  to  law,  on 
his  oath  says — that  the  mortgaged  premises  mentioned  and 
referred  to  in  the  foregoing  report,  were  duly  sold  for  the 
highest  and  best  price  the  same  would  bring  in  cash  at  the  time 
of  sale. 

(Jurat.)  (Signature.) 

Order  confirming  sale  of  mortgaged  premises. 

(Title  of  cause.) 
Upon  reading  and  filing  a  report  made  by  ,  sheriff  of 

the  county  of  ,  bearing  date  the  day  of  , 

eighteen  hundred  and  ,  and  the  affidavit  thereto  annexed, 

whereby  it  appears  that  on  the  day  of  ,  eighteen 

hundred  and  ,  he  sold  at  public  vendue,  at  ,  (hav- 

ing first  duly  advertised  the  same,)  the  lands  and  premises 
described  in  the  writ  of  execution  issued  to  him  in  the  above- 
stated  cause,  to  ,  of  the  of  ,  county  of 
and  State  of  New  Jersey,  for  the  sum  of  ,  he  being  the 
highest  bidder  therefor,  and  that  the  said  lands  and  premises 
were  so  sold  at  the  highest  and  best  price  the  same  would  then 
bring  in  cash,  and  no  cause  being  shown  or  appearing  to  the 
contrary  :  It  is,  on  this  day  of  ,  eighteen  hundred 
and  ,  ordered,  that  the  said  sale  be  and  the  same  is  hereby 
confirmed  as  valid  and  effectual  in  law.  And  it  is  further 
ordered,  that  the  said  sheriff  do  execute  a  good  and  sufficient 
conveyance  in  the  law  to  the  said  (or  his  assigns)  for  the 
said  mortgaged  premises  so  sold.  (Signature.) 


DEED.  237 

Deed    by  sheriff  or  master  for    land   sold  under 
foreclosure.(a)      This   indenture,    made   this  day    of 

,  in  the  year  one  thousand  eight  hundred  and 
between  ,  sherijBF  of  the  county  of  ,  {pr,  " 

one  of  the  masters  in  chancery  of  New  Jersey,")  of  the  first 
part,  and  ,  of  ,  in  the  county  of  ,  and  State 

of  ,  of  the  second  part. 

Whereas,  a  certain  writ  of  fieri  facias  lately  issued  out  of  the 
Court  of  Chancery  of  the  State  of  New  Jersey   to   the  said 
,  ("  sheriff  of  the  said  county  of  ,")  directed  and 

delivered  in  the  following  words,  to  wit :  {reGite{b)  the  writ  ver- 
batim) as  by  the  said  writ  duly  recorded  in  the  clerk's  office  of 
the  Court  of  Chancery  of  New  Jerssy  will  more  fully  appear. 
And  to  the  end  that  a  sale  of  the  said  lands  and  premises  should 
be  made,  pursuant  to  the  statute  in  such  case  made  and  pro- 
vided, the  said  ,  sheriff  as  aforesaid,  by  public  advertise- 
ments(c)  signed  by  himself  and  set  up  at  five  or  more  public 
places  in  the  said  county  of  ,  one  whereof  was  in  the 
{township  or  ward)  where  such  lands  and  real  estate  are  situate, 

(a)  The  sheriff  or  other  officer  who,  therein  described,  were  sold ;  but  the 
by  virtue  of  any  writ  of  execution,  same  shall  be  good  and  valid,  and 
shall  sell  any  lands,  tenements,  here-  received  in  evidence  as  such,  notwith- 
ditaments  and  real  estate  levied  on,  standing  any  variance  between  the 
shall  make  to  the  purchaser  thereof  a  recital  in  said  deed  and  the  execution 
deed  of  conveyance  for  the  lands,  &c.,  by  virtue  of  which  the  sale  was  made, 
so  sold  ;  which  deed  of  conveyance  and  notwithstanding  any  variance  be- 
shall  transfer  to  and  vest  in  the  said  tween  the  said  execution  and  the 
purchaser  as  good  and  perfect  an  estate  judgment  upon  which  the  execution 
to  the  premises  therein  mentioned  as  was  issued.  Rev.,  "Sale  of  Land,"  §  8. 
the  person  against  whom  the  said  writ  A  variance  is  cured  by  the  statute. 
or  writs  of  execution  were  issued,  was  Den  v.  Taylor,  1  Harr.  532.  Recital 
seized  of  or  entitled  to  at  or  before  does  not  mean  copy;  if  it  recites 
the  said  judgment,  and  as  fully  to  enough  to  show  under  what  execution 
all  intents  and  purposes  as  if  such  the  sheriff  acted,  it  will  be  a  sufficient 
person  had  sold  the  said  lands,  tene-  recital.  Ben  v.  Downam,  1  Gr.  137. 
ments,  hereditaments  and  real  estate  (c)  A  sheriff's  deed  may  be  admit- 
to  such  purchaser,  and  had  received  ted  in  evidence,  although  it  contains 
the  consideration  money  and  signed,  no  recitals  of  advertisements,  but  the 
sealed  and  delivered  a  deed  for  the  grantee  must  prove  that  due  public 
same.     Rev.,  "Sale  of  Lands,"  ?  7.  notice  was  given.     Den  v.  Downam, 

(6)  The  deed  shall  recite  the  writ  supra;  Osborne  v.  Tunis,  1  Dutch.  6S3; 

by  virtue  whereof  the  said  lands,  &c..  Den  v.  Humphreys,  1  Harr.  25, 


238  FORMS   OF   PLEADINGS. 

at  least  four  weeks(a)  next  before  the  time  appointed  for  selling 
the  same,  and  also  published  in  the  and  ,  two  of  the 

newspapers  printed  and  published  in  the  county  of  ,  in 

which  said  lands  and  real  estate  are  situate,  and  designated  for 
the  publication  of  the  laws  of  New  Jereey,(6)  of  which  one  was 
a  newspaper  printed  and  published  at  the  county  seat(c)  of  said 
county,  at  least  four  weeks  successively  once  a  week  next  preced- 
ing the  time  appointed  for  said  sale,  did  give  public  notice  that 
the  said  lands  and  premises  would  be  exposed  to  sale  at  public 
vendue  on  ,  the  day  of  ,  A.  D.  eighteen  hun- 

dred and  ,  at  o'clock  in  the  afternoon,  at  , 

in  the  ,  and  at  the  time  and  place  so  appointed  and  adver- 

tised, (did  publicly  adjourn  the  said  sale  until  the  day  of 

,  &c.,  at  the  hour  of,  <fec.,  at  the  place  aforesaid ;  and  at 
the  time  and  place  to  which  the  sale  was  adjourned  as  aforesaid, 
did  again  publicly  adjourn  the  said  sale  until,  &c.,  which  said 
adjournments  were  advertised  in  {the  same  two  newspapers  in 
which  the  notice  of  sale  ^oas  published ;)  and  at  the  time  and 
place  to  which  the  sale  was  adjourned  as  ("  last")  aforesaid,  did 
expose  the  said  lands  and  premises  to  sale  by  public  vendue  to 
the  highest  bidder,  and  *  ("  the  said  ")  being  the  highest 

bidder  therefor,  the  same  were,  then  and  there,  between  the 
hours  of  twelve  and  five  o'clock  in  the  afternoon  of  the  day  last 
aforesaid,  struck  off  and  sold  to  him  for  the  sum  of  dol- 

lars, according  to  the  form  of  the  statute  in  such  cases  made  and 
provided.)  {If  the  premises  sold  shall  be  only  a  'part  of  the  land 
described  in  the  execution,  the  form  above  will  be  varied  accord- 
ingly.) {In  case  the  deed  is  made  to  the  assignee  of  the  purchaser, 
substitute  the  name  of  the  original  purchaser  in  place  of  the  party 
of  the  first  part  at  the  *,  and  insert  here,  "And  whereas,  the  said 

{naming  purchaser)  has  duly  assigned  his  bid  to  the  said 
party  of  the  second  part  hereto,  with  directions  in  writing  to  the 

(a)  See   Pamph.  L.,  1891,  p.  491.  (b)  See  act  above  referred   to   for 

This  act  repeals  the  statute  requiring  publication  in  case  no  designatiou  has 

such  sales  to  be  advertised  in  a  news-  been  made  of  newspaper  to  publish 

paper  published  in  the  German  Ian-  the  laws. 

guage,  but   applies  to  sheriff's   sales  (c)  See  Rev.,  "Sale  of  Land,"  I  29. 

only. 


DEED.  239 

said  party  of  the  first  part  to  execute  the  deed  to  him  the  said 
party  of  the  second  part  hereto ;  and  whereas,  the  said  sheriff 
reported  the  said  sale  in  writing  to  the  Chancellor,  stating  the 
name  of  the  purchaser  of  said  lands  and  premises  and  the  price 
obtained  therefor,  annexing  to  said  report  an  affidavit  that  said 
lands  and  premises  were  sold  for  the  highest  and  best  price  the 
same  would  at  the  time  of  sale  bring  in  cash,  and  the  said 
did,  by  an  order  made  on  the  (date,)  confirm  the  said  sale  as 
valid  and  effectual  in  law,  and  directed  said  sheriff  to  execute  a 
good  and  sufficient  conveyance  in  the  law  to  the  said  ,  the 

purchaser,  (or  his  assigns,)  for  the  said  mortgaged  lands  and 
premises  so  sold,  as  by  the  said  order  of  confirmation,  reference 
being  thereto  had,  will  more  fully  appear :  "(a) 

Now  this  indenture  witnesses,  that  the  said  sheriff  (or 

^'  master  ")  as  aforesaid,  for  and  in  consideration  of  the  sum  of 
dollars   to   him   paid,   the   receipt   whereof    is   hereby 
acknowledged,  hath  granted,  bargained  and  sold,  and  by  these 
presents  doth  grant,  bargain,  sell  and  convey(6)  unto  the  said 
,  his  heirs  and  assigns,  all   the  hereinbefore   described 
tract  of  land  and  premises,  {or,  if  the  sale  be  of  a  part  of  the  land 
^  only,  say,  "  all  that,"  &c.,  describing  the  part  sold,  "  being  a  part 
of  the  lands  and  premises  hereinabove  first  described,")  together 
with  the  hereditaments  and  appurtenances  thereto  belonging  or 
appertaining:   To  have  and  to  hold  the  said  ("last")  above- 
mentioned  and  described  tract  of  land  and  premises,  with  the 
appurtenances,  unto  the  said  ,  his  heirs  and  assigns  for- 

ever, as  fully  and  absolutely  as  the  said  ,  the  said  party 

(a)  The   purchaser   can  assign   his  Whipple  v.  Farrar,  3   Mich.  {Gibbs) 

bid,  and  the  deed  is  good  if  made  to  436;  Proetor  v.  Farnum,  5  Paige  614; 

the  assignee  of  the  purchaser  stated  to  Den  v.  Lambert,  1  Gr.  182,  185. 

he  such,  in  the  deed,  by  the  oflScer.  (6)  The    deed    must    contain    apt 


Ekings  v.  Murray,  2  Stew.  Eq.  388 
and  see  Rigby  v.  McNamara,  6  Ves. 
515;  Vale  v.  Davenport,  Id.  615 
Stafford   v.   Williams,  12   Barb.   240 


words  of  conveyance  and  grant,  and  it 
must  substantially  purport  to  grant 
and  convey  the  premises  to  the  pur- 
chaser in  consideration  of  the  contract 


U.   S.  Bank  v.  Voorhees,  1   McLean  of  sale  and  payment  of  the  purchase 

221;   Frizzle  v.   Veach,  1  Dana  211.  money.     Johnson   v.  Bantock,  38  111. 

The  assignment  may  be  enforced   in  111. 
equity.     Ekings    v.   Murray,    supra; 


240 


FORMS  OP  PLEADINGS. 


of  the  first  part,  sheriff  (or  "  master  ")  as  aforesaid,  can,  may  or 
ought,  by  virtue  of  the  said  execution  and  of  the  statute  in  such 
cases  made  and  provided,  to  grant,  bargain,  sell  and  convey  the 
same. 

In  witness  whereof,  the  said  sheriff  {or  "  master  ")  has  here- 
unto set  his  hand  and  seal,  the  day  and  year  first  above  written. 
[Signature  of  sheriff' or  master.){a)     [l.  s.] 

Signed,  sealed  and  delivered(6)  in  the  presence  of — 

{Signature  of  witness.) 
{Add  acknowledgment  in  due  form.) 


(a)  It  has  been  held  in  New  York, 
that  a  deed  executed  by  the  deputy 
sheriff  in  the  name  and  on  the  behalf 
of  his  principal  was  a  good  execution 
of  the  deed ;  that  a  sale,  and  the  con- 
summation of  that  sale  by  deed,  are 
acts  which  the  sheriff  may  do  by 
deputy  ;  that  the  law  does  not  require 
them  to  be  done  by  the  sheriff  in  per- 
son.    Jackson  v.  Bush,  19  Johns.  223. 

The  conveyance  of  any  land  or 
real  estate  sold  by  any  sheriff  or 
other  officer,  *  *  *  in  pursuance 
of  a  decree,  judgment,  execution  or 
order  of  a  court,  *  *  *  made  and 
duly  acknowledged  or  approved,  and 
the  record  thereof,  or  a  certified  copy 
of  such  record,  shall  be  good  and 
sufficient  prima  facie  evidence  of  the 
truth  of  the  recital  in  the  said  deed 
or  conveyance  contained.  Rev.,  "Sale 
of  Lands,"  §  14.  The  statute  does 
not  affect  the  title  under  the  deed, 
but  only  changes  the  rule  of  evidence 
as  to  the  manner  of  proving  the  facts 
required  to  constitute  a  valid  sale; 
and  it  applies  where  a  deed,  given 
before  the  passage  of  the  act,  is  offered 
in  evidence.  Campbell  v.  Dewick,  5 
a  E.  Or.  186. 


(6)  A  sheriff's  deed  takes  full  effect 
only  from  the  time  of  delivery,  and 
does  not  relate  back  to  the  time  of 
sale,  so  as  to  sustain  an  intermediate 
sale  and  conveyance  by  the  sheriff 
of  the  lands  therein  mentioned.  Den 
V.  Steelman,  5  Hal.  193.  A  deed  exe- 
cuted and  acknowledged  by  a  sheriff, 
in  this  state,  for  lands  sold  by  him 
under  execution,  may  be  delivered 
in  another  state.  Walker  v.  Hill's  Ex., 
7  a  E.  Or.  513 ;  affirming  6  C.  E.  , 
Gr.  192.  The  legal  title  of  land  is 
not  affected  by  a  sheriff's  deed,  where, 
at  the  time  of  levy  and  sale,  the 
title  was  not  in  the  defendant  in  exe- 
cution. Belford  v.  Crane,  1  C.  E.  Gr. 
265. 

Title  cannot  be  derived  through  a 
sheriff's  deed  unless  it  appears  affirm- 
atively by  recitals  in  the  deed,  or  by 
proof  aliunde,  that  the  sheriff  has 
advertised  the  sale  according  to  law. 
Henderson  v.  Hays,  12  Vr.  387.  A 
reversal  of  the  judgment  under  which 
a  sale  has  been  made,  subsequent  to 
the  passage  of  title,  will  not  nullify  or 
disturb  the  purchaser's  title.  Shultz 
V.  Sanders,  11  Stew.  Eg.  154. 


OATH   OR   AFFIRMATION. 


241 


Oath  or  affirmation  to   be   endorsed  on  or  added 
to  the  conveyance. (a)     I,  ,  sheriff  of,  &c.,  (or  "mas- 

ter ")  as  aforesaid,  do  solemnly  swear  {or  "  affirm  ")  that  the  land 


(a)  Where  a  sheriff  or  other  officer 

*  *  *  shall  make  sale  of  any  lands 
or  real  estate  in  pursuance  of  a  decree, 
judgment,  execution  or  order  of  any 
court,  the  said  sheriff,  officer  or  audi- 
tor shall  make  and  sign  an  affidavit, 
endorsed  on  or  added  to  the  convey- 
ance therefor,  before  the  Chancellor, 
one  of  the  justices  of  the  Supreme 
Court  or  a  master  in  chancery,  in  the 
above  form.  Rev.,  "Sale  of  Lands,"  § 
13.      Which    conveyance,    approved, 

*  *  *  may  be  recorded  as  if  duly 
acknowledged;  and  the  said  convey- 
ance, or  the  record  thereof,  or  a  certi- 
fied copy  of  such  record  shall  be  evi- 
dence of  a  good  and  valid  sale  and 
conveyance  of  said  land  and  real 
estate,  as  if  the  same  had  been  reported 
to  and  approved  by  the  court,  in  pur- 
suance of  whose  decree,  &c.,  the  same 
was  made.  Ibid.  The  sections  (13  and 
14)  above  quoted,  seem  to  qualify  the 
section  of  the  act  declaring  that  no 
deed  shall  be  recorded  unless  duly 
acknowledged  or  proved.  Rev.,  "Con- 
veyances," §  13.  It  is  the  uniform 
practice,  however,  for  sheriffs  and 
other  officers  to  acknowledge  deeds 
made  by  them. 

In  general,  sheriffs'  deeds  are  within 
the  provisions  of  recording  acts. 
Rorer  on  Jud.  Sales,  ?  833,  and  notes. 
Where  a  deputy  duly  appointed  con- 
ducts the  sale,  the  sheriff  may  take 
the  oath  required  by  Rev.  1045,  §  13. 
Meyer  v.  Patterson,  1  Stew.  Eq.  239. 
If  any  sheriff  or  coroner,  who  shall 
make  sale  of  any  lands  or  real  estate 
by  virtue  of  an  execution  against  the 
same,  shall  abscond,  or  depart  from 
the  state,  or  be  disqualified  by  law,  or 
rendered  unable  by  death,  or  be  other- 


wise incapable  to  make  a  deed  or  con- 
veyance for  the  same,  it  shall  be  law- 
ful for  any  succeeding  sheriff  of  the 
county  in  which  such  lands  or  real 
estate  are  situate,  on  receiving  a  certi- 
ficate from  the  Court  of  Common  Pleas 
of  such  county,  signed  by  the  clerk  by 
order  of  the  said  court,  setting  forth 
that  sufficient  proof  has  been  made  to 
the  said  court  that  such  sale  was 
fairly  and  legally  made,  and  on  tender 
of  the  purchase  money,  or  if  the  pur- 
chase money  or  any  part  of  it  has 
been  paid,  then,  on  proof  of  such  pay- 
ment, and  on  tender  of  the  residue,  if 
any  there  be,  to  sign,  seal  and  deliver 
to  the  said  purchaser,  or  his  legal 
representative,  a  deed  or  conveyance 
of  the  lands  and  real  estate  so  sold ;. 
which  deed  shall  be  as  good  and 
valid,  and  shall  have  the  same  force 
and  effect  as  if  the  sheriff  or  coroner 
who  made  such  sale  had  signed, 
sealed  and  delivered  a  deed  or  con- 
veyance for  the  same  in  due  form  of 
law ;  and  the  purchase  money  received 
by  the  sheriff  making  the  deed  shall 
be  paid  to  the  person  entitled  thereto 
by  law.  Rev.,  "Sale  of  Lands,"  ?  11  ^ 
Den  V.  Mulford,  1  Zab.  500.  If  any 
master  in  chancery,  who  has  made  or 
shall  make  sale  of  any  lands,  &c.,  by- 
virtue  of  an  execution  against  the 
same,  shall  abscond  or  depart  from 
the  state,  or  be  disqualified  by  law,  or 
shall  die,  or  in  any  way  become  in- 
capable of  making  a  deed  of  convey- 
ance for  the  same,  it  shall  be  lawful 
for  the  court  out  of  which  the  said' 
execution  issued,  upon  satisfactory 
proof  that  such  sale  has  been  fairly 
and  legally  made,  to  appoint  another 
master   in  chancery,  who  sha,ll  have 


Q 


242  FORMS   OF  PLEADINGS. 

and  real  estate  described  in  this  deed  made  by  me  to  was 

by  me  sold  by  virtue  of  a  good  and  subsisting  execution,  as  is 
therein  recited ;  that  the  money  ordered  to  be  made  has  not  been, 
to  my  knowledge  or  belief,  paid  or  satisfied;  that  the  time  and 
place  of  the  sale  of  said  land  and  real  estate  were  by  me  duly 
advertised  as  required  by  law,  and  that  the  same  was  cried  off 
and  sold  to  a  bona  fide  purchaser  for  the  best  price  that  could  be 
obtained. 

{Signature  of  sheriff  or  master.) 

Sworn  (or  "  affirmed  ")  before  me,  one  of  the  masters,  &c.,  [or 
as  the  case  may  he,)  on  this  day  of  ,  A.  d.  , 

and  I  having  examined  the  deed  above  mentioned,  do  approve 
the  same,  and  order  it  to  be  recorded  as  a  good  and  sufficient 
conveyance  of  the  land  and  real  estate  therein  described. 

{Signature  of  officer.) 

Capias  ad  satisfaciendum.(a)    New  Jersey,  to  wit — The 
State  of  New  Jersey  to  the  sheriff  of  the  county  of 
L  '    '^  — Greeting  : 

full  power,  on  tender  of  purchase  mediate  sequestration  of  the  real  and 
money,  or  if  the  purchase  money  or  personal  estate  of  the  defendant,  or  so 
any  part  of  it  has  been  paid,  then,  on  much  thereof  as  may  be  sufficient  to 
proof  of  such  payment,  and  on  tender  satisfy  the  demand  of  the  complainant 
of  the  residue,  if  any  there  be,  to  in  the  decree  specified,  with  costs,  or 
sign,  seal  and  deliver  to  the  said  pur-  to  issue  a  writ  of  fieri  facias  against 
chaser,  or  his  legal  representative,  a  the  goods  and  chattels,  lands,  tene- 
deed  or  conveyance  of  the  lands,  tene-  ments,  hereditaments  and  real  estate 
ments,  hereditaments  and  real  estate  of  the  defendant,  upon  which  sutficient 
■so  sold;  which  deed  shall  be  as  good  property  shall  be  taken  and  sold  to 
and  valid,  and  have  the  same  force  satisfy  the  said  demand,  with  costs,  or 
and  effect  as  if  the  master  who  made  to  issue  a  capias  ad  satisfaciendum 
such  sale  had  signed,  sealed  and  de-  against  the  defendant,  upon  which 
livered  a  deed  or  conveyance  for  the  writs  of  fieri  facias  and  capias  ad  satis- 
same  in  due  form  of  law ;  and  the  faciendum  there  shall  be  the  same  pro- 
moneys  received  on  such  conveyance  ceedings  as  at  law ;  or  to  cause  by  in- 
shall  be  paid  to  the  person  entitled  junction  the  possession  of  the  effects 
thereto  by  law.  Rev.,  "Sale  of  Lands,"  and  estate  demanded  by  the  bill,  and 
§  12.  whereof  the  possession  or  a  sale  is  de- 
(a)  The  complainant  having  ob-  creed  to  be  delivered  to  the  com- 
tained  a  decree,  it  shall  be  lawful  for  plainant  or  otherwise,  according  to 
the  court  to  issue  process  for  the  ira-  such  decree  and  as  the  nature  of  the 


FEIGNED    ISSUE.  243 

We  command  you  that  you  take  ,  if  he  may  be  found 

in  your  county,  and  him  safely  keep  so  that  you  may  have  his 
body  before  our  Chancellor,  in  our  Court  of  Chancery,  on  the 

Tuesday  of  next,  to  satisfy  dollars  and 

cents,  and  interest  thereon  from  ,  eighteen  hundred  and 

,  which  the  said  complainant  lately,  in  our  said  Court  of 
Chancery,  before  our  Chancellor,  recovered  against  the  said  de- 
fendant, ,  for  the  costs  and  charges  by  the  said  complain- 
ant in  suit  in  that  behalf  expended,  whereof  the  said 
defendant  is  convicted,  as  appears  to  us  of  record. 

Witness   his   Honor  ,  Chancellor,  at   Trenton,   this 

day  of  ,  in  the  year  one  thousand  eight  hundred 

and 

Clerh. 
Solicitor. 


FEIGNED    ISSUE.(a) 


Notice  of  motion  for  an  issue  at  law  under  the 
statute.  As  on  page  148  to  *,  then,  for  an  order  awarding  an 
issue  at  law  in  this  cause  for  the  trial  by  a  jury  of  the  facts  in 
controversy  therein. 


To  ,  Solicitor  of 


{Signature  of  solicitor.) 


case    may   require ;    and    in   case   of  be  delivered   to  the  sheriff  or   other 

sequestration    the   court   shall    order  officer  to  be  executed,  as  at  law.   Rev., 

payment  and  satisfaction  to  be  made  "  Chancery,"  §  65.     For  form  of  writ 

out    of    the    estate     so    sequestered,  of  sequestration,  see  page  43,  and  of 

according  to  the  true  intent  and  mean-  writ  of  fieri  facias,  page  216,  ante. 

ing  of  the  decree.     Rev.,  "  Chancery,"  (a)    If    any    matter   of   fact    shall 

I  64.     This  section  applies  to  personal  render    the    intervention   of   a   jury 

decrees  for  the  payment  of  money,  for  necessary,  then  the  Court  of  Chancery 

costs   and   the   like.     A  writ   of  fieri  is   authorized   to   direct   an  issue  for 

facias    shall    bind    the    property    or  the  trial  of  the  same  in  the  Supreme 

goods  of  the  person  against  whom  it  Court.      Rev.,    "  Chancery,"     {,     100. 

is  issued  from  the  time  that  it  shall  Upon  the  application  of  either  party, 


244  FORMS   OP   PLEADINGS. 

Order  for  an  issue  at  law  under  the  statute.(a) 

{Title  of  cause.) 

This  matter  being  opened  to  the  court  by  ,  of  counse],. 

&c.,  and  it  appearing  that  this  cause  is  at  issue  upon  a  replica- 
tion to  the  answer  of  the  defendant,  ,  and  is  in  readiness 
to  take  testimony  therein,  the  bill  having  been  taken  as  con- 
fessed against  the  defendant,  ,  and  on  reading  and  filing 
a  notice  of  motion  on  the  part  of  the  defendant  {or  "  complain- 
ant,") ,  for  an  issue  in  this  cause  to  be  tried  by  a  jury,  and 
an  affidavit  of  the  due  service  of  such  notice  upon  the  solicitor 
for  the  ,  and  on  hearing  the  arguments  of  the  respective 
counsel,  {or  as  the  case  may  be:)  It  is,  on  this  day  of 
,  &c.,  ordered,  that  an  issue  at  law  be  framed  in  the 
Supreme  Court  of  New  Jersey,  and  tried  in  the  ordinary  man- 
ner, between  the  said  ,  defendant  {or  "complainant")  in 
this  cause,  as  plaintiflF,  and  ,  complainant  {or  "defend- 
ant") in  this  cause,  as  defendant,  by  a  jury  of  the  county  of 
,  to  inquire,  ascertain  and  determine  whether,  &c.,  {recite 
the  issue  to  be  tried  as  settled  by  the  Chancellor;  and  either 
party  may  notice  the  cause  for  trial,  and  a  special  jury  may  be 
had  upon  the  application  to  this  court  of  either  party ;  and  if 
the  application  shall  be  made  after  the  hearing  in  chancery,  say, 
"  and  the  exhibits,  documents  and  depositions  in  this  cause  may 
be  used  in  evidence  on  the  trial,  in  case  the  witnesses  who  testi- 

an  issue  at  law  shall  be  directed  to  that  court  only.  Am.  Dock  <&  Imp. 
try  the  validity  of  a  claim  to  real  Co.  v.  Trustees,  10  Stew.  Eq.  266. 
estate  in  certain  cases,  or  to  settle  the  (a)  Whether  an  order  is  for  an 
facts,  or  any  specified  portion  of  the  action  at  law  or  an  issue  out  of  chan- 
facts  upon  which  the  same  depends,  eery,  does  not  depend  upon  the  form 
and  the  Court  of  Chancery  shall  be  in  which  the  issue  is  raised.  For 
bound  by  the  result  of  such  issue,  but  convenience  of  trial  the  issue  must  be 
may,  for  sufficient  reasons,  order  a  given  the  form  of  a  common-law 
new  trial  thereof,  according  to  the  action,  with  appropriate  pleadings  at 
practice  in  such  cases.  Rev.,  ''Titles,"  law,  to  raise  an  issue;  but  the  nature 
^  5,  p.  1190.  Where  an  issue  is  sent  and  purpose  of  the  issue  gives  it  char- 
out  of  Chancery  the  whole  proceeding  acter  as  a  feigned  issue  or  otherwise, 
is  under  the  control  of  the  Court  of  and  not  the  form  in  which  the  issue. is 
Chancery,  and  the  conduct  and  result  expressed.  Am.  Dock  &  Imp.  Co.  v. 
of  the  trial  are  subject  to  review  in  Trustees,  10  Stew.  Eq.  266. 


FEIGNED   ISSUE.  245 

^ed  to  the  same  be  dead,  or  upon  sickness  or  other  sufficient 
cause  be  unable  to  attend  such  trial,  in  the  discretion  of  the 
Chancellor.") 

And  all  further  directions  are  reserved  until  the  issue  shall  be 
tried,  and  the  postea  returned  into  this  court. 

Order  for  a  feigned  issue  at  the  hearing.(a) 

(Title  of  cause.) 

This  cause  coming  on  to  be  heard  at  a  regular  term  of  this 
court,  held  at  Trenton,  in  the  presence  of  ,  of  counsel 

with  the  complainant,  and  ,  of  counsel  with  the  defend- 

ant, whereupon,  and  upon  hearing  the  pleadings,  exhibits  and 
evidence  in  the  cause  read,  and  upon  hearing  what  was  alleged 
by  the  counsel  for  the  said  respective  parties,  the  Chancellor 
having  taken  time  to  consider  and  advise  thereon  :  It  is,  on  this 
day  of  ,  in  the  year,  &c.,  ordered,  adjudged  and 

decreed,  and  the  Chancellor,  by  virtue  of  the  power  and  authority 
of  this  court,  does  adjudge  and  decree,  at  the  instance  and  upon 
the  motion  of  the  complainant,(6)  by  his  said  counsel,  that  a 

(a)  It  is  the  province  and  the  duty  In  general,  according  to  the  practice 

of  the  court  to  decide  upon  the  facts  in  chancery,  a  cause  will   be  brought 

and  the  law,  except  in  cases  of  real  to  a  formal  hearing  before  an  issue  is 

•difBculty,  growing  out  of  contradictory  directed.     Eames  v.  Fames,  16  Pick. 

testimony,  or  opposing  facts  and  cir-  143 ;  1  Barb.  Ch.  Pr.  446,  463.     An 

cumstances  which  it  is  impossible  for  issue   may   be   awarded    before   final 

the  court  to  reconcile ;  then  an  issue  hearing.      Bliss    v.   Slater,   May    T., 

is  directed  to  inform  the  conscience  of  1872 ;  Carpenter  v.  E.  &  A.  R.  R.  Co., 

the  court.     Miller  v.  Wack,  Sax.  204 ;  9  C.  E.  Gr.  408 ;  Prudden  v.  Lindsley, 

Decker  v,  Caskey,  Id.  427;  Am.  Dock  1  Stew.  Eq.  381.     An  order  made  at 

&  Imp.  Co.  V.  Trustees,  &c.,  10  Stew.  the    final    hearing    for    an    issue   is 

Eq.   266.     The   practice   of    sending  appealable.     Railroad  Co.  v.  Newark, 

ordinary  matters  to  a  jury  ought  to  be  8   C.  E.  Gr.  515. 

discouraged.     Bassett    v.   Johnson,    2  (6)  The  court  may  refer  a  disputed 

Gr.  Ch.  417  ;  Denton  v.  Leddell,  8  C.  question  of  fact  to  the  decision  of  a 

E.  Gr.  64;  Newark  &  N.  Y.  R.  R.  Co.  jury,  on   its   own   motion.     Black   v. 

T  3fayor,  &c.,  of  Neivark,  Id.  515.  Lamb,  1  Beas.  108  ;  Carpenter  v.  E.  & 

The  awarding  of  an  issue  rests  in  A.  R.  R.  Co.,  9   C.  E.  Gr.  408.     Or 

the     discretion    of    the     court,    and  upon   application   of   relators   in    an 

should  be  sparingly  exercised.     Tren-  information.    Att'y-Gen.  v.  Heishon,  3 

ton  Bank  v.  Woodrii,f,  1   Gr.  Ch.  118  ;  C.  E.  Gr.  413. 
Bassett  v.  Johnson,  2  Gr.  Ch.  417. 


246  FORMS   OF   PLEADINGS. 

feigned  issue  be  framed  in  the  Supreme  Court,  and  tried  in  the 
ordinary  manner,  between  the  said  ,  complainant  in  this 

cause,  as  plaintiff,  and  ,  defendant  in  this  cause,  as  de- 

fendant, by  a  jury  of  the  county  of  ,  at  the  next  Circuit 

Court  to  be  holden  in  said  county,  to  inquire,  ascertain  and  de- 
termine, by  the  verdict  of  said  jury,  whether  the  erection  of  the 
dam  by  the  defendant,  mentioned  in  the  pleadings  in  this  cause, 
has  seriously  and  permanently  affected  and  injured  the  meadows 
of  the  complainant,  lying  above  it,  {or  otherwise,  reciting  the 
issue  to  be  tried,  as  the  case  may  be;)  and  that  either  party  may 
notice  the  cause  for  trial,  and  the  defendant  in  the  issue  may 
carry  down  the  record  by  proviso,(a)  in  order  that  the  trial  may 
be  had  at  the  ensuing  circuit;  and  that  a  special  jury(6)  will  be 
ordered  by  this  court,  on  the  application  of  either  party,  subject 
to  the  preference  given  to  the  plaintiff  by  the  rules  of  the  Su- 
preme Court ;  and  that  copies  of  the  depositions,  certified  by  the 
clerk  of  this  court,  be  read,  and  received  in  evidence  on  the  said 
trial,  as  rebutting  evidence,  or  as  original  evidence,  in  case  the 
witnesses  who  testified  to  the  same  be  dead,  or  from  sickness  or 
other  sufficient  cause  be  unable  to  attend  such  trial ;  and  that  no 
new  witnesses  shall  be  produced  at  said  trial  without  giving  ten 
days'  notice  of  the  intention  to  produce  them,  with  the  name 
and  place  of  abode  of  such  witnesses  ;  and  that  all  further  direc- 
tions be  reserved  until  the  said  issue  shall  be  tried,  and  the 
postea  returned  to  this  court. 

Feigned  issue  from  chancery.(c) 

New  Jersey  Supreme  Court. 
Pleas  before  the  Justices  of  the  Supreme  Court  of  Judicature 
of  the  State  of  New  Jersey,  at  Trenton,  of  the  term  of  , 

in  the  year,  &c.     Witness  ,  Chief  Justice. 

Clerk. 

(a)  See  3  Bla.  Com.  357.  by  the  plaintiff's  solicitor,  or  by  the 

(b)  The  Chancellor  may  order  a  solicitor  of  whichever  party  is  ordered 
special  jury.  Bassett  v.  Johnson,  supra.  by  the  court  to  prepare  it.    The  party 

(c)  Upon  granting  an  order  for  a  supporting  the  affirmative  of  the  ques- 
feigned  issue,  a  draft  of  the  pleadings  tion  to  be  tried  is  usually  directed  to 
in  an  action  of  assumpsit  is  prepared  be  the  plaintiff  in  the  issue.     This  is 


FEIGNED   ISSUE.  247 

county,  88. —  puts  in  his  place  ,  his  attor- 

ney, against  ,  in  a  plea  of  trespass  on  the  case,  &c. 

county,  88. —  puts  in  his  place  ,  his  attor- 

ney, against  ,  at  the  suit  of  ,  in  a  plea  of  trespass 

on  the  case,  &c. 

county,  88. — Be  it  remembered,  that  on  the  day 

of  ,  before  the  Justices  of  the  Supreme  Court  of  the  State 

of  New  Jersey,  at  Trenton,  came  ,  the  plaintiff  in  this 

suit,  by  ,  his  attorney,  and  brought  into  this  court  his 

declaration  against  ,  the  defendant  in  this  suit,  in  a  plea 

of  trespass  on  the  case,  &c. ;  which  said  declaration  is  in  these 
words : 

county,  88. —  complains  of  ,  in  custody, 

&c.,  for  that  whereas,  on  the  day  of  ,  in  the  year, 

&c.,  at  ,  in  the  county  of  ,  in  a  certain  discourse 

then  and  there  had  by  and  between  the  said  and  , 

in  a  certain  suit  depending  in  the  Court  of  Chancery  of  the 
State  of  New  Jersey,  wherein  the  said  is  complainant, 

and    the  said  is  defendant,  a   question  then  and   there 

arose,  and  was  debated   between  the  said  and  the  said 

,  whether  a  certain  dam  erected  by  the  said  ,  in 

creek,  in  the  said  county  of  ,  had  seriously  and 

permanently  affected  and  injured  the  meadows  of  the  said  , 

lying  and  being  above  the  said  dam,  in  the  county  aforesaid ; 
and  the  said  then  and  there  asserted  and  aflBrmed,  that 

the  said   dam  so  as   aforesaid    erected    in  creek,  in  the 

county   of  aforesaid,    had    seriously   and    permanently 

affected  and  injured  the  meadows  of  the  said  ,  lying  and 

generally  the  plaintifl'  in  equity,  but  sent.  Bell  v.  Woodward,  47  N.  H.  539. 

the  court  will  direct  any  other  party  The  facts  to  be  stated  in  the  case  may 

to  be  plaintiff  at  law,  if  the  issue  can  be  stated  in  the  order  by  the  court 

be    thus    more    conveniently  raised.  without  reference.    The  case  is  signed 

1  Barb.  Ch.  Pr.  463.     Objections  to  by  the  counsel  on  each  side.     If  one. 

the  form  of  the  issues  should  be  made  refuse   he  waives  its   benefit.     Here 

before  trial,   Bassett  v.  Johnson,  1  Gr.  the  issue  has  been  usually  directed  to 

Ch.  155 ;  Black  v.  Lamb,  1  Beas.  108.  the   Supreme  Court,  and  an  issue  of 

And  in  the  court  from  which  they  are  fact  to  the  Circuit. 


248  FORMS   OF   PLEADINGS. 

being  above  said  dam  as  aforesaid ;  which  said  assertion  and 
affirmation  of  the  said  the  said  then  and   there 

■wholly  denied,  and  asserted  to  the  contrary  thereof;  and  there- 
upon, afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  at 
aforesaid,  in  consideration  that  the  said  ,  at  the 

special  instance  and  request  of  the  said  ,  had  then  and 

there  paid  to  the  said  the  sum  of  one  hundred  dollars, 

lawful  money  of  the  United  States,  the  said  then  and 

there  undertook  and  faithfully  promised  the  said  to  pay 

Ijim  the  sum  of  two  hundred  dollars,  like  lawful  money  as 
aforesaid,  in  case  the  said  dam  had  seriously  and  permanently 
affected  and  injured  the  said  meadows  of  the  said  ,  and 

the  said  in  fact  says,  that  the  said  dam  has  seriously  and 

permanently  affected  and  injured  his  said  meadows,  to  wit,  on 
the  day  of  ,  in  the  year,  &c.,  at  aforesaid, 

whereof  the  said  ,  afterwards,  to  wit,  on  the  said 

day  of  ,  in  the  year,  &c.,  at  aforesaid,  had  notice, 

nevertheless  the  said  ,  not  regarding  his  said  promises  and 

undertakings,  by  him  in  form  aforesaid  made,  has  not  as  yet 
.paid  to  the  said  the  said  sum  of  two  hundred  dollars,  nor 

any  part  thereof,  although  so  to  do  the  said  ,  afterwards, 

to  wit,  on  the  day  and  year  aforesaid,  and  often  afterwards,  at 
aforesaid,  was  by  the  said  requested,  but  the  same 

to  him  to  pay  he  has  hitherto  altogether  refused,  and  still  does 
refuse,  to  the  damage  of  the  said  five  hundred  dollars, 

and  therefore  he  brings  suit,  &c. 

And  the  said  ,  by  ,  his  attorney,  comes  and  de- 

fends the  wrong  and  injury,  when,  &c.,  and  says  the  said 
ought  not  to  have  and  maintain  the  aforesaid  action  against  him, 
because,  he  says,  that  though  true  it  is  the  said  discourse,  in  the 
plaintiff's  declaration  mentioned,  was  had  and  moved  by  and 
between  the  said  and  the  said  ,  wherein  the  ques- 

tions did  arise  as  aforesaid;  and  that  he  did  undertake  and 
promise,  in  manner  and  form  as  the  said  has  above  in  that 

behalf  alleged,  nevertheless,  for  plea  in  this  behalf,  the  said 
says,  that  the  said  dam,  so  as  aforesaid  erected  in  creek, 

in  the  county  of  aforesaid,  has  not  seriously  and  perma- 

nently affected  and  injured  the  meadows  of  the  said  , 


FEIGNED    ISSUE.  249 

lying  and  being  above  the  said  dam  as  aforesaid ;  and  of  this  he 
puts  himself  upon  the  country,  &c. 

And  the  said  doth  the  like,  &c. 

The  foregoing  is  a  true  transcript  of  the  declaration  and 
pleadings  in  this  case,  remaining  of  record  in  the  clerk's  office  of 
the  Supreme  Court  of  the  State  of  New  Jersey. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused 
the  seal  of  the  said   court   to  be  hereunto  affixed,  at 
[l.  8.]     Trenton,  this  day  of  ,  in  the  year,  &c. 

Clerk. 

Order  for  a  struck  jury. (a) 

{Title  of  caiise.) 

As  on  page  36  to  *,  then,  that  due  notice  of  this  motion  has 
been  given  to  the  defendant's  solicitor,  and  the  counsel  of  the 
respective  parties  having  been  heard  on  the  matter  :  It  is,  on, 
&c.,  ordered,  that  the  issue  heretofore  ordered  to  be  tried  at  law 
in  the  above-stated  cause,  be  tried  before  a  special  or  struck 
jury,  and  that  a  jury  be  struck  for  the  trial  thereof,  in  the 
manner  required  by  law  and  the  practice  of  the  courts,  before 
Hon.  ,  one  of  the  Justices  of  the  Supreme  Court. 

And  it  is  further  ordered,  that  if  the  struck  jury  be  not  ready 
to  be  called  and  impaneled  on  ,  the  time  now  fixed  for 

the  said  trial,  then  said  issue  is  to  be  tried  before  a  common 
jury  of  said  county,  notwithstanding  this  order. 

Postea.(6)  Afterwards,  that  is  to  say,  at  a  Circuit  Court  of 
the  Supreme  Court  of  the  State  of  New  Jersey,  holden  in  and 
for  the  county  of  ,  on  the  day  of  ,  &c.,  as 

yet  of  the  term  of  ,  &c.,  before  the  Honorable  ,  one 

of  the  Justices  of  said  Supreme  Court,  came  as  well  the  said 
,  the  plaintiff;  as  the  said  ,  the  defendant,  by  their 

respective  attorneys  within  mentioned,  and  the  jurors  of  the 
jury,  &c.,  being  duly  called,  chosen  and  summoned,  and  to 
speak  the  truth  of  the  matters  within  contained,  being  chosen, 

^  (a)   By    the    English    practice,    if  (6)  The  transcript  and  postea  mii&t 

either  of  the  parties  requires  a  special  be   returned    to   the   court   awarding 

jury,  a  motion  for  one  should  be  made  the   issue,   and   not   to  the   Supreme 

to  the  Court  of  Chancery.     Anon.,  2  Court.    Trenton  Bank  v.  Eossell,  1  Or. 

P.  Wms.  68.  Ch.  492. 


250  FORMS   OF   PLEADINGS. 

tried  and  sworn,  say,  upon  their  oath  aforesaid,  that  the  said 
dam  of  the  said  defendant  has  not  seriously  and  permanently 
affected  the  said  meadow  of  said  plaintiff  {or  state  the  finding  of 
the  jury  J  as  the  case  may  be.) 

{Signature  of  justice.) 

Certificate  of  judge  to  be  annexed  to  minutes  of 
trial,  &c.{a) 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey  : 

I,  ,  one  of  the  Justices  of  the  Supreme  Court  of  the 

State  of  New  Jersey,  do  hereby  certify  and  report  that  the  issue 
directed  in  the  above-stated  cause  was  duly  tried  before  me,  at 
the  Supreme  Court  Circuit  in  and  for  the  county  of  ,  at 

the  term  of  ,  18     ,  by  a  jury  of  the  said  county;  that 

the  annexed  contains  the  depositions  read  and  the  oral  evidence 
taken,  which,  with  the  various  exhibits  in  said  cause,  (extracts 
from  which  are  also  annexed,)  were  submitted  to  the  court  and 
jury  in  said  trial,  and  also  my  charge  to  the  said  jury  on  said 
trial.  And  I  further  certify  that,  in  my  opinion,  the  verdict 
•was  warranted  by  the  evidence. 

Dated,  &c.  {Signature  and  addition.) 

Notice  of  motion  for  new  trial  of  feigned  issue.(6) 

{TXtle  of  cause.) 
As  on  page  148  to  *,  then,  for  an  order  directing  a  new  trial 
of  the  issue  directed  in  the  above-stated  cause. 

{Signature  of  solicitor.) 
To  ,  Solicitor  of 

(a)   The  judge   before   Avhom    the  with  the  verdict.    Carpenter  v.  E  d  A. 

issue  is  tried  should  not  only  return  R.  R.  Co.,  11  C.  E.  Gr.  168.     Gener- 

the  posfea,  but  also  furnish  the  Chan-  ally  this   court   will   not   set  aside  a 

cellor  with  a  statement  of  the  trial,  verdict  on  an  issue  at  law  where  the 

containing   the   general   character   of  judge  before   whom   such    issue   was 

the  evidence  ofTered,  the  part  objected  tried  certifies  that  he  is  satisfied  with 

to,  and  his  decision  on  those  objec-  the  verdict,  and  that  it  ought  to  be 

tions,  together  with  his  charge  to  the  regarded  as  conclusive  on  the  question 

jury,   and    the   Chancellor   may   call  submitted   to   the  jury.     Prudden  v. 

upon  him  for   an   additional   report.  Lindsley,  4  Slew.  Eq.  436. 

Bassett  v.  Johnson,  2  Gr.  Ch.  417.  And  (6)  A  new  trial  of  an  issue  at  law 

also  to  certify  whether  he  is  satisfied  may  be  granted  by  the  Chancellor,  if 


FEIGNED   ISSUE.  251 

Order  denying  motion  for  a  new  trial  of  feigned 
issue.(a) 

{Title  of  cause.) 

Upon  the  return  of  the  postea  and  of  the  report  of  Hon. 
,  one  of  the  Justices  of  the  Supreme  Court,  on  the  issue 
heretofore  ordered  by  this  court,  the  defendant  having  moved 
that  a  new  trial  of  the  issue  directed  in  this  cause  be  granted  * 
and  the  said  motion  having  been  argued  by  ,  of  counsel 

with  the  ("defendant,")  and  by  ,  of  counsel  with  the 

("complainant,")  and  the  Chancellor  having  duly  considered 
the  same :  It  is,  on  this  day  of  ,  f  in  the  term  of 

,  ordered,  that  the  said  motion  be  denied,  with  costs. 

Order  for  a  new  trial  of  feigned  issue.(6) 

{Title  of  cause.) 

This  cause  coming  on  to  be  heard  at  the  term  of  this 

court,  in  the  year,  &c.,  and  an  order  for  the  trial  of  a  certain 

he  is  dissatisfied  with  the  evidence,  or  new  trial.     Tatham  v.  Wright,  2  Russ. 

for  other  reasons.    Harrison  v.  Rowan,  d  My.  SI.     But  a  new  trial  will  not 

3  Wash,  a  a.  580 ;  4  Wash.  C.  C.  32.  be  granted  if  the  Chancellor  is  satis- 

By  the  English  practice,  an  applica-  fied  that  the  verdict  is  right,  although 

tion  for  a  new  trial  of  an  issue  must  be  the  judge  misdirected  the  jury.    Tren- 

made  before  the  hearing  on  the  equity  ton  Bank  v.  Rossell,  1   Gr.  Gh.  511; 

reserved.     AtCy-Oen.  v.  Montgomery,  Barker  v.  R^iy,  2  Russ.  63;   Newark 

2   Atk.  378  ;   but   otherwise   in   New  Plank  Road  Co.  v.  Elmer,  1  Slock.  785. 

York  Chancery— see  Apthorp  v.  Com-  If  the  judge  certifies  that  he  is  dis- 

s^ocA,  2  Pat(/e  485;  Van  Alst  y.  Hunter,  satisfied  with   the  verdict,  the  court 

5  Johns.  Ch.  153.     No  exception  can  does  not  as  of  course  grant  anew  trial, 

be  taken  at  nisi  prius  to  the  opinion  though  it  is  the  ordinary  practice  to 

of   the  judge   who   tried   the   cause;  do    so.     Falconberg    v.   Pierce,   Amb. 

the  proper  mode  is  to  move,  before  210;  Atkyns  v.  Drake,  1  McCle.  &  Y. 

the  Chancellor,  for  a  new  trial.    Har-  229. 

risbn  v.  Rowan,  supra.  (6)  The  party  applying  for  a  new 

(a)  If  the  court  feels  satisfied,  from  trial  prepares  the  case,  and  submits  it 

the    report   of    the   judge,    that    thg  to  the  solicitor  of  the  adverse  party, 

points  in  the  case  have  not  been  dis-  and   if  they   cannot   agree,  the   case 

tinctly  presented  to  the  jury,  it  will,  must  be  settled   by  the  judge  before 

without    entering    into   the   question  whom   the  issue  was  tried.     Trenton- 

whether  the  verdict  was  or  was  not  Bank  v.  Rossell,  1  Gr.  Ch.  492. 
satisfactory   upon   the  facts,  direct   a 


252  FORMS   OF   PLEADINGS. 

issue  in  this  cause  before  a  jury,  having  been  made  by  the  Chan- 
cellor, on  the  day  of  ,  &c.,  and  there  having  been 
a  trial  under  said  order,  and  the  circuit  record  and  certificate  of 
the  judge  who  presided  at  the  trial  of  said  issue,  and  the  postea, 
having  been  duly  returned  to  this  court,  and  thereupon,  the  said 
complainant  moving  for  a  new  trial  of  the  said  issue  so  as  afore- 
said directed,  pursuant  to  the  practice  of  this  court,  and  it 
appearing  that  due  notice  of  said  motion  has  been  given  to  the 
solicitor  of  the  defendant,  ;  {proceed  as  in  preceding  form 
after  *  to  fj  then,  "  ordered,  that  there  be  a  new  trial  of  the 
issue  directed  in  this  cause  by  the  said  order  heretofore  made 
therein ;  the  issue  to  be  tried  in  all  respects  in  the  manner  as  in 
the  said  order  is  directed.") 

Notice  of  hearing  for  further  directions  after  trial 
of  feigned  issue.(a) 

{Title  of  cause.) 

Take  notice,  that  this  cause  will  be  brought  to  a  hearing  for 
further  directions  upon  the  pleadings  in  the  feigned  issue  framed 
therein,  and  upon  the  certified  copy  of  the  minutes  of  the  trial 
of  such  feigned  issue  annexed  thereto  and  filed  in  the  office  of 
the  clerk  of  this  court,  at  the  next  regular  term  of  this  court,  to 
be  held  at  the  state-house,  in  the  city  of  Trenton,  on  the 
Tuesday  of  next,  at  the  hour  of  ten  o'clock  in  the  fore- 

noon, or  as  soon  thereafter  as  the  same  can  be  heard. 

(a)  After   the   issues  at   law   have  cause   may   be   set   down   as  soon  as 

been   tried,  the  cause,  unless  a   new  the  trial  has  taken  place.     Rogers  v. 

trial  is  moved  for  and  granted,  must  Nowell,  6  Hare  338.     The  fact  that  an 

be  heard  for  further  directions  upon  appeal    is    pending    from    an    order 

the  equity  reserved.    The  cause  then  refusing  a  new  trial  is  not  sufficient 

comes  on  in  the  regular  course,  when  to   stay   the   further   hearing   of   the 

such  final  or  other  decree  as  the  cause  cause.     McGregor  v.  Topham,  4  Hare 

calls   for,  will   be   pronounced.     The  162. 


PROCEEDINGS   AGAINST   A   PURCHASER. 


253 


PROCEEDINGS  TO  COMPEL  A  PURCHASER  TO 
COMPLETE  HIS  PURCHASE. 

Petition  to   compel  a  purchaser    to   complete  his 
pui'chase  after  execution  sale.(a) 

(Title  and  address.) 
The  petition  of  ,  the  complainant  in  this  cause,  respect- 

fully shows,  that  on  or  about  the  day  of  &c.  he 

filed  his  bill  in  this  court  to  foreclose  a  mortgage  in  said  bill 
mentioned,  made  and  executed  by  and  ,  upon  cer- 

tain lands  and  premises  {heix  identify  the  property)  in  said  bill 


(a)  If  a  purchaser  is  responsible, 
he  will  not  be  permitted  to  baffle  the 
court ;  and,  therefore,  instead  of  dis- 
charging him  from  his  bidding,  and 
ordering  a  resale,  the  court  will  make 
an  order  that  he  shall,  within  a  given 
time,  pay  the  purchase  money  and  be 
let  into  possession.  2  Dan.  Ch.  Pr. 
1282 ;  Silver  v.  Campbell,  10  C.  E.  Or. 
465.  A  purchaser  may  be  discharged 
from  his  bid  whenever  he  shows  a 
good  reason  for  being  released. 
Irregularity  in  the  proceedings  of  sale 
which  renders  the  title  defective,  has 
been  held  a  good  cause  for  discharg- 
ing a  purchaser.  Alvord  v.  Beach,  5 
Ab.  451 ;  Hopper  v  Hopper,  1  C.  E. 
Or.  149.  A  purchaser  at  a  sheriff's 
sale,  when  not  a  party  to  the  suit,  is 
held  to  be  made  a  party  by  the  pur- 
chase, so  far  as  to  be  subject  to  the 
jurisdiction  of  the  court  on  questions 
arising  from  the  sale.  Shann  v.  Jones, 
4  C.  E.  Gr.  251.  Such  purchaser 
may  therefore  be  compelled  to  com- 
plete his  purchase  in  a  summary  way 
by  an  order  upon  him,  without  a  bill, 
to  pay  the  money  or  bring  it  into 
court.  Silver  v.  Campbell,  supra.  The 
remedy  in  the  Court  of  Chancery  to 
compel  the  purchaser  to  complete 
the  purchase  by  summary  process  is 


not  exclusive.     A  sheriff   who   has 
sold  lands  under  a  fieri  facias  out  of 
chancery  in    a   foreclosure  suit,  may 
bring   an   action   at   law  in  his   own 
name  against  a  purchaser  who  refuses 
to  comply  with  the  conditions  of  sale. 
Where  the  conditions  of  sale  are  that 
if  a  purchaser  refuse  to  comply,  the 
property  will  be  resold,  and  the  pur- 
chaser held  liable  for   all  losses  and 
expenses,  and   on  the  refusal  of  ihe 
purchaser  to  comply,  the  property  has 
been  resold  on  the  same  conditions  of 
sale,  and  a  less  sum  realized  ;  in  an 
action  against   the  former  purchaser, 
the  measure  of  damages  is  the  differ- 
ence between  the  defendant's  bid  and 
the  sum  realized  at  the  second  sale, 
together  with  the  costs  and  expenses 
of  the  resale.     Townshend  v.  Simon,  9 
Vr.  239.     Where,  by  the  conditions  of 
sale,  it  is  provided  that  "if  the  pur- 
chaser do  not  comply  with  the  condi- 
tions, the  property  shall   be  resold," 
the  officer  is  not  bound,  upon  a  failure 
of  the  purchaser  to  comply  with  the 
conditions,   to   make    a  second    sale, 
though   requested    to   do   so   by   the 
defendant  in  execution.     Woodhull  v. 
Neafie,  1    Gr.  Ch.  409;   see  Seton   v. 
Slade,  7  Ves.  265 ;  Wood  v.  Mann,  3 
Sumn.  C.  a  318. 


254  FORMS   OF   PLEADINGS. 

particularly  described ;  that  such  proceediDgs  were  thereupon 
had  in  said  cause ;  that  on  the  day  of  ,  &c.,  it  was 

ordered  and  decreed  by  this  honorable  court  that  an  execution 
issue  out  of  this  court  for  the  sale  of  said  lands  and  premises,  to 
raise  and  pay  the  amount  adjudged  to  be  due  to  your  petitioner 
upon  his  said  mortgage,  together  with  his  taxed  costs  and  the 
sheriff's  execution  fees ;  that  a  writ  of  execution  was  duly  issued 
thereon  pursuant  to  said  decree,  directed  and  delivered  to  the 
sheriff  of  the  county  of  ,  and  that  the  said  lands  and 

premises,  after  having  been  duly  advertised  by  said  sheriff,  were 
on  the  day  of  ,  &c.,  struck  off  and  sold  to  , 

of  ,  be  being  the  highest  bidder  therefor. 

And  your  petitioner  further  shows,  that  said  sale  was  upon 
the  following  terms  and  conditions,  to  wit,  {state  the  conditions 
of  sale,)  a  true  copy  of  which  is  annexed  to  this  petition ;  that 
said  ,  the  purchaser,  immediately  after  said  sale,  signed 

the  said  conditions  and  an  acknowledgment  of  his  purchase, 
and  paid  to  the  sheriff  per  cent,  of  the  purchase  money, 

according  to  the  terms  thereof;  that  said  did  not  comply 

with  the  other  conditions  of  said  sale,  or  complete  his  purchase 
within  the  time  limited  by  said  conditions,  and  has  not  paid  the 
balance  of  the  said  purchase  money  or  any  part  thereof  to  said 
sheriff,  or  to  your  petitioner,  or  to  any  other  person  for  them  or 
either  of  them ;  that  after  the  time  so  limited  as  aforesaid  for 
the  completion  of  said  purchase  and  the  delivery  of  the  deed  had 
expired,  your  petitioner  called  upon  said  and  requested 

him  to  complete  his  said  purchase  {state  any  particulars  of  the 
interview  bearing  upon  the  case.) 

And  your  petitioner  further  shows,  that  he  verily  believes 
that  the  said  does  not  intend  to  complete  his  purchase, 

and  he  therefore  prays,  that  an  order  of  this  court  may  be  made, 
requiring  the  said  specifically  to  perform  his  said  contract 

of  purchase  of  the  mortgaged  premises  in  this  cause,  under  the 
execution  issued  therein,  or  that  your  Honor  will  make  such  other 
or  further  order  in  the  premises  as  may  be  agreeable  to  equity. 

And  your  petitioner  will  ever  pray,  &c. 

{Signature  of  solicitor  and  counsel.) 

{Annex  an  affidavit  of  full  verification  of  the  facts.) 


PROCEEDINGS  AGAINST   A   PURCHASER.  255 

Order  to  show  cause  upon,  foregoing  petition. 

{Title  of  cause.) 

This  matter  being  opened  to  the  court,  &c.,  and  upon  reading 
and  filing  the  petition  of  ,  the  complainant  in  this  cause, 

and  the  affidavit  thereto  annexed,  whereby  it  appears  that  , 

the  purchaser  at  the  sale  of  the  lands  and  premises  in  the  plead- 
ings and  execution  in  this  cause  described,  has  failed  to  comply 
with  the  conditions  of  sale  thereof,  and  acknowledgment  of 
purchase  signed  by  him  :  It  is,  on  this,  &c.,  on  motion,  &c., 
ordered,  that  the  said  show  cause  before  the  Chancellor, 

on  ,  the  day  of  next  (or  "  instant,")  at 

o'clock    in    the   forenoon,  at  ,  why    he   should   not   be 

required  specifically  to  perform  his  contract  of  purchase  of  the 
mortgaged  premises  in  this  cause,  under  the  execution  issued 
therein. 

And  it  is  further  ordered,  that  a  copy  ("of  said  petition  and") 
of  this  order  be  served  on  the  said  within  days 

from  the  date  hereof. 

Order  making  preceding  order  absolute.(a) 

{Title  of  cause.) 
This  matter  coming  on  to  be  heard  in  the  presence  of  , 

of  counsel  with  the  petitioner,  and  of  ,  of  counsel  with 

,  the  purchaser  in  the  petition  in  this  cause  mentioned, 
on  the  order  granted  on  said  petition  for  the  said  to  show 

cause  why  the  prayer  of  said  petition  should  not  be  granted,  and 
upon  hearing  the  arguments  of  the  respective  counsel :  It  is,  on 
this,  &c.,  on  motion,  &c ,  ordered,  that  said  order  to  show  cause 
be  made  absolute. 

And  it  is  further  ordered,  that  said  do,  within 

days  after  service  upon  him  of  a  copy  of  this  order,  pay  to 
,  sheriff  of  the  county  of  ,  the  balance  of  the  pur- 

chase money  due  from  him  under  the  terms  and  conditions  of 

(a)  The  order  for  payment  of  the  the   ordinary   manner.     2   Di7n.    Ch. 

purchase  money  being  made,  must  be  Pr.  1283,     The  court  may,  however, 

served  personally  upon  the  purchaser,  direct    other   service   when   personal 

and   if  not  complied   with,   may   be  service  is  impossible,  by  reason  of  the 

enforced   by  process  of  contempt,  in  purchaser  avoiding  it,  &c. 


256  FORMS  OF   PLEADINGS. 

sale  in  said  petition  mentioned,  signed  by  him  on  the  day 

of  ,  together  with  lawful  interest  thereon  from  the  date- 

last  aforesaid ;  and  that  within  the  same  time  he  do  also  pay  to 
the  said  petitioner,  or  to  his  solicitor,  the  costs  of  said  petition, 
and  of  this  order. 


APPLICATIONS   FOR  SURPLUS  MONEY. 
Petition  for  surplus  money. (a) 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey  : 

The  petition  of  ,  of  the  county  of  ,  in  the  State 

of  New  Jersey,  respectfully  shows,  that  an  execution,  tested  on 
the  day  of  ,  in  the  year,  &c.,  issued  out  of  this 

court,  in  a  certain  cause  wherein  was  complainant,  and 

your  petitioner  and  ,  his  wife,  and  ,  were  defend- 

ants, which  execution  was  directed  to  the  sheriff  of  the  county 
of  ,  commanding  him  to  make  sale  according  to  law,  in 

the  first  place,  of  three  tracts  of  land,  described  in  a  certain 
mortgage  bearing  date  on  the  day  of  ,  in  the  year, 

&c. ;  and  that  out  of  the  proceeds  of  such  sale  he  should  pay  to 

(a)  Petitions  for  surplus  moneys  a  foreclosure  suit  shall  be  ordered  to 
or  other  moneys  deposited  in  court,  be  taken  as  confessed  against  any  de- 
should  always  be  entitled  in  the  cause  fendant,  no  report  or  decree  shall  be 
or  matter  to  the  credit  of  which  the  made  by  which  his  right  or  claims 
fund  stands.  are  postponed  to  those  of  any  other 

Petitions  for  surplus  moneys  in  defendant,  unless  the  priority  of  the 
foreclosure  sales  may  be  presented  at  rights  or  claims  of  such  other  defend- 
any  time  after  the  sale,  and  before  the  ant  and  the  facts  upon  which  it  de- 
moneys  are  paid  into  court.  And  if  pends,  are  distinctly  set  forth  in  the 
any  order  be  made  for  the  payment  of  bill.  And  any  controversies  between 
such  surplus  before  the  delivery  of  such  defendants  may  be  settled  upon 
the  deed,  the  sheriff  or  other  officer  application  for  the  surplus  moneys, 
making  the  sale  shall  accept  the  Bute  24.  The  surplus  moneys  arising 
receipt  or  order  of  the  person  to  on  a  sale  of  land  under  a  decree  of 
whom  such  surplus,  or  any  part  of  it,  foreclosure,  stand  in  the  place  of  the 
may  be  ordered  to  be  paid,  as  pay-  land  in  respect  to  those  having  liens 
ment  to  that  extent  of  the  purchase  upon  or  vested  rights  therein.  3Iat' 
money,  or  may  pay  the  same  to  such  thews  v.  Duryee,  46  Barb.  69. 
person.    Rule  153.    Where  the  bill  in 


SURPLUS   MONEY.  257 

the  said  complainant,  or  to  his  solicitor,  the  sum  of  dol- 

lars, with  the  interest  thereon  from  the  day  of  ,  in 

the  year,  &c.,  and  also  the  sum  of  dollars  of  costs,  if  the 

same  would  so  far  extend ;  and  that  he  should  then  make  sale 
of  the  tract  of  land  described  in  the  mortgage  bearing  date  on 
the  day  of  ,  in  the  year,  &c.,  and  that  out  of  the 

proceeds  of  such  sale  he  should  pay  to  the  said  complainant,  or 
to  his  solicitor,  the  sum  of  ,  with  interest  thereon  from 

the  day  of  ,  and  that  he  should  apply  the  surplus 

money,  if  any  there  be,  arising  from  the  last-mentioned  sale,  to 
the  payment  of  such  part  of  the  said  sum  of  dollars,  with 

the  interest  thereon  as  aforesaid,  and  of  so  much  of  the  said  sum 
of  dollars  of  costs,  as  should  remain  unpaid  by  the  sales 

of  the  said  three  tracts  of  land  first  directed  to  be  sold,  &c.,  (as 
the  case  may  be,  reciting  the  execution.)  And  in  case  more 
money  should  be  raised  by  the  said  sales  than  should  be  suffi- 
cient to  answer  such  payments,  the  said  sheriff  was  commanded 
to  bring  such  surplus  money  into  the  said  court,  and  deposit  the 
same  with  the  clerk  thereof,  until  the  further  order  of  the  said 
court,  as  by  reference  to  the  said  execution  will  more  fully 
appear. 

And  your  petitioner  further  shows  unto  your  Honor,  that,  in 
pursuance  of  the  said  writ  of  execution,  ,  sheriff  of  the 

said  county  of  ,  has  made  sale  of  the  several  tracts  of  land 

mentioned  in  said  writ,  and  has  deposited  with  the  clerk  of  this 
court  the  sum  of  dollars,  as  the  surplus  money  remaining 

in  his  hands  after  the  several  payments  which  by  the  said  writ 
he  was  commanded  to  make. 

And  your  petitioner  further  shows,  that  the  several  tracts  of 
land  directed  by  the  said  writ  of  execution  to  be  sold,  were  a 
part  of  the  real  estate  of  your  petitioner,  and  were  sold  for  the 
payment  and  satisfaction  of  a  certain  mortgage  given  by  your 
petitioner  to  the  said  ,  which  mortgage  was  discharged  by 

said  sale,  and  your  petitioner  is  therefore  entitled  to  receive  the 
said  surplus  money.     {The  above  is  in  a  plain  case  where  there 


258  FORMS   OF   PLEADINGS. 

was  but  one  mortgage,  and  that  held  by  the  complainant.  If 
there  are  other  liens  or  encumbrances  on  the  fund,  they  must  be 
stated  according  to  the  facts.) 

Your  petitioner  therefore  prays,  that  an  order  of  this  court 
be  made,  directing  the  clerk  to  pay  over  to  your  petitioner  the 
said  surplus  money,  or  such  other  order  as  to  your  Honor  shall 
seem  proper. 

And  your  petitioner  will  ever  pray,  &c. 

{Signature  of  solicitor  and  counsel.) 

{Annex  affidavit  of  verification.) 

Order  of  reference  on  petition  for  surplus. (a) 

{Title  of  cause.) 

Upon  reading  and  filing  the  petition  of  ,  setting  forth 

that  the  sheriff  of  the  county  of  has  deposited  with  the 

clerk  of  this  court  the  sum  of  dollars,  being  the  surplus 

money  arising  from  the  sale  of  certain  real  estate  of  the  said 
petitioner,  made  by  virtue  of  an  execution  issued  out  of  this 
court  in  the  above-stated  cause,  and  praying  that  an  order  may 
be  made  upon  the  said  clerk  to  pay  over  the  said  surplus  money 
to  the  said  petitioner,  or  such  other  order  as  may  be  proper  in 
the  premises :  It  is  thereupon,  on  this  day  of  ,  in 

the  year,  &c.,  ordered,  that  it  be  referred  to  ,  one  of  the 

special  masters  of  this  court,  to  ascertain  the  truth  of  the  alle- 
gations of  the  said  petition,  and  whether  the  said  petitioner  is 
entitled  to  the  said  surplus  money  {or  vary  the  order  to  meet  the 
circumstances  of  the  particular  case  y)  and  that  he  make  report 
thereon  with  all  convenient  speed.  And  all  further  directions 
are  reserved  until  the  coming  in  of  the  said  master's  report. 

(a)  Any  master,  to  whom  an  appli-  shall  not  proceed,  unless  such  sum- 
cation  for  surplus  moneys  may  be  monses  shall  have  been  served  five 
referred,  shall  issue  summonses  to  all  days,  in  the  manner  directed  in  the 
defendants  whose  claims  are  not  twentieth  rule,  or  the  parties  shall 
directed  in  the  execution  to  be  paid  appear  before  him.  Bide  154. 
out  of  the  proceeds  of  sale;   and  he 


SURPLUS   MONEY.  259 

Master's  report  on  petition  for  surplus. (a) 
{Title  of  cause.) 

In  pursuance  of  an  order  of  this  court,  bearing  date  the 
day  of  ,  in  the  year,  &c.,  whereby  it  was  referred  to  the 

subscriber,  one  of  the  special  masters  of  this  court,  to  report 
as  to  the  truth  of  the  allegations  of  said  petition,  &c.,  I  do 
report,  that  I  have  been  attended  by  the  solicitor  of  the  peti- 
tioner, and  also  by  the  solicitor  of  ,  claiming  to  be  in- 
terested in,  and  to  be  entitled  to,  some  part  of  the  surplus 
money  mentioned  in  the  said  petition,  and  having  heard  the 
proofs  of  the  parties,  do  report,  that  the  matters  and  things  set 
forth  in  the  petition  are  true ;  and  that  the  sheriff  of  the  county 
of  has  deposited  with  the  clerk  of  this  court  the  sum  of 
dollars,  as  the  surplus  money  arising  from  the  sale 
of  certain  mortgaged  premises  sold  by  virtue  of  an  execution 
issued  out  of  this  honorable  court  as  the  premises  of  the  said 

,  to  satisfy  a  certain  mortgage  given  by  the  said 
and  wife  to 

And  I  further  report,  that  it  has  appeared  in  evidence  before 
me  that  the  said  obtained  a  judgment  in  a  plea  of  trespass 

on  the  case  upon  promises  against  the  said  ,  on  the 

day  of  ,  in  the  year,  &c.,  in  the  Court  of  ,  {as  the 

case  may  be,)  for  the  sum  of  dollars,  damages,  and 

dollars,  costs  of  suit,  amounting  to  the  sum  of  ;  and  that 

execution  was  thereon  issued  and  delivered  to  the  sheriff  of  the 
said  county  of  ,  who  levied  on  the  said  mortgaged  prem- 

ises, besides  other  property  of  the  said 

And  I  further  report,  that  by  virtue  of  the  said  execution 
last  mentioned,  the  said  sheriff  made  sale  of  certain  personal 
property  of  the  said  ,  on  the  day  of  last,  and 

that  he  received  on  that  day  from  such  sale  the  sum  of 
dollars. 

(a)    Parties   and    other    claimants,  master  may  examine  the  claimants  on 

upon    a    reference    to    a    master    to  oath  touching  their  respective  claims, 

ascertain   the   rights   to    the  surplus  Hurlburt  v.  McKay,  8  Paige  651.     As 

moneys  upon  a   mortgage  sale,  must  to   claims   of  judgment   creditors   in 

verify  their  claims  in  the  same  man-  attachment,  see  Hill  v.  Beach,  1  Beas. 

ner   as  creditors   coming   in  under  a  32;   Brantingkam  v.  Brantingham,  1 

decree  are  required  to  do ;   and  the  Beas.  164. 


260  FOKMS  OF   PLEADINGS. 

And  I  further  report,  that,  on  the  said  day  of  , 

the  principal  and  interest  due  to  the  said  on  his  said  judg- 

ment amounted  to  the  sum  of  dollars,  after  deducting  the 

said   sum   received   by  the  said  sheriff  towards   the   payment 
thereof;  and  that  the  said  is  entitled  to  receive  the  said 

sum  of  dollars,  with  interest,  out  of  the  said  surplus 

money;   and   that   the   said  is   entitled   to   receive   the 

remainder  of  the  said  surplus  money,  {or  setting  forth  the  sub- 
stance of  the  master's  report,  as  the  case  may  be.) 

All  which  will   more  fully  appear   by  the  schedule  to  this 
report  annexed,  and  which  I  pray  may  be  taken  as  part  hereof. 

Respectfully   submitted,  this  day  of  ,  eighteen 

hundred  and  .(a) 

{Signature  of  master.) 

Final  order  on  petition  for  surplus.  Upon  reading 
and  filing  the  report  of  ,  one  of  the  special  masters  of 

this  court,  to  whom  was  referred  the  matters  contained  in  the 
petition  of  the  said  ,  which  said  report  bears  date  on  the 

day  of  instant,  whereby  it  appears  that  the  sheriff 

of  the  county  of  has  deposited  with  the  clerk  of  this  court 

the  sum  of  dollars,  as  the  surplus  money  arising  from  the 

sale  of  certain  mortgaged  premises  sold  by  virtue  of  an  execution 
issued  out  of  this  court,  as  the  premises  of  the  said  ,  to 

satisfy  a  certain  mortgage  given  by  the  said  and  wife  to 

;  and  it  further  appearing  by  the  said  report  that  one 
is  entitled  to  receive  the  sum  of  dollars,  with  in- 

terest from  the  day  of  last  past,  out  of  the  said 

surplus  money,  being  the  balance  due  the  said  upon  a 

certain  judgment  obtained  by  him  against  the  said  ;  and 

that  the  said  is  entitled  to  receive  the  remainder  of  the 

(a)  Where  it  appears  from  the  mas-  the  special  order  of  the  court  to  con- 
ter's  report  that  the  proceedings  upon  firm  the  report,  and  pay  over  the  sur- 
the  reference  as  to  surplus  moneys  plus  moneys  according  to  the  report, 
were  entirely  ex  parte,  so  that  no  party  may  be  entered  together.  But  in  all 
has  a  right  to  except  to  the  report,  other  cases,  a  rule  nisi  to  confirm  the 
the  entry  of  a  rule  nisi  to  confirm  the  report  must  be  first  entered.  Hurl- 
report  may  be  dispensed  with;   and  hurt  v.  McKay,  8  Paige  651. 


SURPLUS   MONEY. 


261 


said  surplus  money  ;  and  upon  reading  the  petition  of  the  said 
,  praying  that  such  order  be  made  in  the  premises  as 
shall  be  agreeable  to  equity  :  It  is  thereupon,  on  this  day 

of  ,  in  the  year,  &c.,  by  his  Honor  ,  Chancellor 

of  the  State  of  New  Jersey,  on  motion  of  ,  solicitor  and 

of  counsel  with  the  petitioner,  ordered,  that  the  said  master's 
report  be  in  all  things  confirmed. 

And  it  is  further  ordered,  that  the  clerk  of  this  court  pay  unto 
,  the  said  judgment  creditor,  the  said  sum  of  dollars, 

with  the  interest  thereof  from  the  day  of  last  until 

the  date  of  this  order,  and  that  the  said  clerk,  after  deducting 
the  commissions  allowed  to  him  upon  the  said  surplus  money, 
do  pay  the  remainder  thereof,  together  with  the  accumulations 
on  the  said  deposit  according  to  the  rule  of  this  court,  to  the 
said  or  his  solicitor.(a) 


(a)  The  sheriff  or  other  officer  to 
whom  a  writ  of  fieri  facias  shall  be 
directed  and  delivered,  shall  make 
sale  pursuant  to  the  command  of  the 
writ,  and  shall  make  and  execute  a 
deed  or  deeds  for  the  premises  sold,  as 
the  case  may  require ;  and  the  moneys 
arising  from  said  sale  shall  be  applied 
to  pay  off  and  discharge  the  moneys 
decreed  to  be  paid,  and  the  remainder, 
if  any  there  be,  and  if  the  person  or 
persons  entitled  to  receive  it  shall  be 
absent  out  of  this  state,  it  may  be  in- 
vested in  stock  of  the  United  States, 
or  put  at  interest  on  such  security  as 
the  court  shall  think  proper  to  order ; 
and  the  same  shall  be  delivered  or 
paid  to  the  person  or  persons  entitled 
to  receive  it  upon  his  application  to 
the  court  for  the  same;  no  greater 
estate  in  the  premises  sold  shall  at 
any  time  be  conveyed  or  granted  to 
such  purchaser,  than  would  have 
vested  in  the  mortgagee  had  the 
equity     of     redemption     been     duly 


foreclosed.  Ber ,  "Chancery,"  ?  72. 
Where  the  lands  have  been  sold  and 
the  surplus  deposited,  and  any  person 
or  corporation  shall  theretofore  or 
thereafter  have  obtained  judgment 
against  the  owner  of  the  land  so 
ordered  to  be  sold,  or  any  other  per- 
son or  persons  who  may  be  entitled 
to  the  surplus,  or  any  part  thereof, 
the  Chancellor  may,  on  petition  filed 
by  such  judgment  creditor  and  on  due 
proof  to  his  satisfaction  that  the  resi- 
dence of  the  person  entitled  to  the 
surplus  money  is  unknown  and  can- 
not be  ascertained,  order  the  judg- 
ment to  be  satisfied  out  of  the  surplus, 
notwithstanding  such  creditor  was 
not  made  a  party  defendant  in  the 
cause;  it  shall  not  be  necessary  in 
such  cases  for  the  judgment  creditor 
to  apply  to  be  admitted  as  a  party 
defendant,  but  the  petition  shall  be 
entitled  in  the  cause  out  of  which  the 
surplus  was  realized.  Pamph.  L.,  1892, 
p.  412. 


262 


FORMS   OF   PLEADINGS. 


Petition    for    surplus    money    by    administrator, 

&C.(a) 

In  Chancery  of  New  Jersey. 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey  : 

The  petition(6)  of  ,  administrator  of  the  goods   and 

chattels,  moneys  and  effects,  rights  and  credits,  which  were  of 

,  deceased,  at  the  time  of  his  death,  who  died  intestate, 
respectfully  shows,  that  an  execution,  tested  on  the  day 

of  ,  in  the  year  eighteen  hundred  and  ,  issued  out 

of  this  court  in  a  cause  wherein  was  complainant,  and 

and  (others)  were  defendants,  which  execution  was  directed 
to  the  sheriff  of  the  county  of  ,  commanding  him  to  make 

sale  according  to  law,  of  a  lot  or  tract  of  land  described  in  a 
mortgage  set  forth  in  the  bill  of  complaint  in  said  cause,  and 
bearing  date  the  day  of  ,  eighteen  hundred  and 

;  and  that  out  of  the  proceeds  of  such  sale  he  should  pay 
to  the  complainant  or  his  solicitor  the  sum  of  dollars, 

with  interest  thereon  from  the  day  of  ,  eighteen 

hundred  and  ,  and  also  the  sum  of  dollars,  costs,  if 


(a)  The  Chancellor  may  order  sur- 
plus money  paid  to  executor,  &c.,  of 
deceased  mortgagor.  See  Rev.  Sup., 
"Chancery,"  ?  21. 

(6)  Applications  by  executors  or 
administrators  for  the  surplus  moneys 
on  foreclosure  sales,  or  for  the  pro- 
ceeds of  lands  sold  in  suits  for  parti- 
tion, to  be  applied  by  them  to  the 
payment  of  the  debts  of  a  decedent 
represented  by  them,  shall  be  made 
by  petition ;  the  petition  shall  state 
the  time  of  the  death  of  the  decedent, 
the  date  of  the  sheriff's  or  master's 
deed  upon  which  such  moneys  were 
received,  whether  any  of  the  heirs  or 
devisees  have  aliened  or  encumbered 
their  estate  in  the  lands  sold,  in  whole 
or  in  part,  and  when  and  what  part, 
and  to  whom.  There  shall  be  an- 
nexed to  the  petition  a  true  account 
of  the  personal  estate  of  the  decedent 


that  has  come  to  the  hands  or  knowl- 
edge of  the  petitioner,  stating  the 
amount  of  the  same  which  has  been 
collected  or  realized,  and  what  part, 
if  any,  has  not  been  collected  or  real- 
ized, and  specifying  what  parts  are 
deemed  good,  doubtful  or  desperate ; 
such  account  shall  also  state  how  the 
amount  realized  has  been  disposed  of, 
and  how  much  remains  on  hand,  also 
the  debts  due,  or  claimed  to  be  due, 
from  the  decedent,  and  to  whom 
owing,  and  what  part  of  such  debts  is 
disputed  by  the  petitioner.  And  such 
petition  and  account  shall  be  verified 
by  oath.  Bale  155.  The  surplus 
money  on  a  forelosure  sale  is  regarded 
as  realty  for  the  purpose  of  distribu- 
tion, except  where  conversion  has 
taken  place  by  the  act  of  the  parties. 
Smith  v.  Bayright,  7  Stew.  Eq.  424. 


SUBPLUS   MONEY.  263 

the  same  would  so  far  extend  ;  and  in  case  more  money  should 
be  raised  by  said  sale  than  should  be  sufficient  to  answer  such 
payments,  he  was  commanded  to  bring  such  surplus  money  into 
this  court,  and  deposit  the  same  with  the  clerk  until  the  further 
order  of  this  court,  as  by  reference  to  the  said  execution  will 
more  fully  appear. 

And  your  petitioner  further  shows,  that  in  pursuance  of  said 
writ  of  execution,  the  sheriff  of  said  county  of  ,  has  made 

sale  of  the  said  land  and  premises  to  one  and  delivered 

a  deed  therefor  to  the  said  purchaser,  dated  on  the  day 

of  ,  eighteen  hundred  and  ,  and  has  deposited  with 

the  clerk  of  this  court  the  sura  of  dollars,  as  the  surplus 

money  remaining  in  his  hands  after  the  several  payments  which 
by  the  said  writ  of  execution  he  was  commanded  to  make. 

And  your  petitioner  further  shows,  that  the  said  land  and 
premises  directed  by  the  said  writ  of  execution  to  be  sold  were 
part  of  the  real  estate  of  said  ,  deceased,  and  were  sold 

for  the  payment  and  satisfaction  of  a  mortgage  given  by  one 
and  wife  to  one  ;  and  assigned  by  said  to 

said  complainant ;  that  the  said  and  wife,  the  mortgagors 

above  named,  conveyed  the  said  mortgaged  premises,  subject  to 
the  said  mortgage,  to  the  said  ,  in  his  lifetime,  by  deed 

dated  the  day  of  ,  eighteen  hundred  and  ; 

and  that  the  said  died  seized  of  the  said  land  and  prem- 

ises, on  or  about  the  day  of  ,  eighteen  hundred  and 

,  intestate,  and  leaving  him  surviving  the  said  , 

his  widow,  and  and  ,  his  only  children  and  heirs- 

at-law,  and  that  none  of  the  said  *  heirs-at-law  (or  in  case  the 
decedent  shall  have  lejt  a  will,  ajter  *,  "  devisees  ")  have  aliened 
or  encumbered  their  estate  in  the  lands  so  sold  ;  that  after  the 
death  of  the  said  ,  your  petitioner  made  application  to  the 

surrogate  of  the  county  of  ,  in  this  state,  for  letters  of 

administration  upon  his  estate;  and  that  afterwards,  on  the 
day  of  ,  in  the  year  last  aforesaid,  the  said  surro- 

gate granted  to  your  petitioner  letters  of  administration,  of  the 
goods  and  chattels,  rights  and  credits  which  were  of  said  , 

deceased,  according  to  the  statute  in  such  case  made  and  pro- 
vided, whereby  your  petitioner  became  and  is  duly  authorized 
to  administer  the  same  agreebly  to  law. 


264  FORMS   OF   PLEADINGS. 

And  your  'petitioner  further  shows,  that  ,  {one  of  the 

heirs-at-law,)  is  a  married   man,  and  that  his  wife's  name  is 

,  and  that  she  would  have  been  entitled  to  an  inchoate 

right  of  dower  in  the  said  lands  and  premises,  if  the  same  had 

not  been  so  sold. 

And  your  petitioner  further  shows,  that  there  have  been  pre- 
sented to  your  petitioner,  as  administrator  as  aforesaid,  debts  of 
the  said  ,  deceased,  to  an  amount  greatly  exceeding  the 

value  of  all  the  property,  rights  and  credits  left  by  him  at 
the  time  of  his  death,  and  which  have  come  to  the  hands  of 
your  petitioner,  to  be  administered  as  administrator  as  aforesaid, 
and  that  said  debts  exceed  the  amount  or  value  of  said  property, 
rights  and  credits  and  the  surplus  money  aforesaid ;  and  that 
the  schedule  hereto  annexed  contains  a  just  and  true  statement 
and  account  of  said  estate  and  debts. 

And  your  petitioner  further  shows,  that  the  aforesaid  mort- 
gage was  discharged  by  the  said  sale,  and  there  not  being  suffi- 
cient estate,  property,  rights  and  credits  of  the  said  , 
deceased,  to  pay  his  debts  as  aforesaid,  it  is  necessary  for  the 
proper  administration  of  his  estate  that  the  said  surplus  money 
should  be  paid  to  your  petitioner  as  administrator  of  said 
deceased,  for  the  payment  of  said  debts,  and  to  be  administered 
according  to  law. 

Your  petitioner  therefore  prays,  that  an  order  of  this  court 
may  be  made,  directing  the  said  clerk  to  pay  over  to  your  peti- 
tioner, as  administrator  as  aforesaid,  the  said  surplus  money,  or 
such  other  order  as  to  your  Honor  shall  seem  proper. 

And  your  petitioner  will  ever  pray,  &c. 

{Signature  of  solicitor  and  counsel.) 

Schedule. 

The  account  of  ,  administrator,  &c.,  of  ,  late  of 

,  deceased,  referred  to  in  the  foregoing  petition. 

DB. 

This  accountant  charges  himself  {here  follow  the  items  of  the 
moneys  and  property  come  to  his  hands  and  collected  or  realized.) 


SURPLUS   MONEY.  265 

CR. 

This  accountant  prays  allowance.  {Here  follow  the  items  of 
payments  and  disbursements. (a) 

Balance  in  the  hands  of  the  accountant. 

Statement  of  the  f  state  of  said  decedent  come  to  the  knowl- 
edge of  this   accountant,  not   included   in   the  above  account. 

{Here  follows  the  inventory  of  the  estate.) 

Statement  of  the  debts  due,  or  claimed  to  be  due,  from  said 
decedent,  and  to  whom  owing.  {Here  follows  the  statement  of 
items,  specifying,  in  order,  those  considered  good,  doubtful  and 
desperate,  and  those  disputed,  and  not  disputed,  separately.) 

Affidavit  of  verification. 

New  Jersey,  ss. —  ,  of  full   age,  being   duly  sworn 

according  to  law,  says — that  he  is  the  petitioner  named  in  the 
foregoing  petition  and  that  the  matters  and  things  therein  set 
forth  are  true,  to  the  best  of  his  knowledge,  information  and 
belief. 

And  he  further  says,  that  the  statement  annexed  to  his  said 

petition  is  a  true  account  both  of  the  personal  estate  of  the  said 

,  deceased,  so  far  as  the  same  has  come  to  the  hands  or 

knowledge  of  this  deponent,  and  of  the  condition  of  the  same, 

and  of  the  debts  of  said  deceased. 

Sworn,  &c.  {Signature.) 

Notice  of  application  by  executors  or  administra- 
tors for  sm*plus  money.(6) 

{Title  of  cause,  and  mentioning  petition.) 

Please  take  notice,  that  I  shall  apply,  &c.,  {as  in  form  on 
page  148  to  *,  and  add,)  by  petition,  for  the  payment  to  , 

(a)  The  items  of  the  credit  side  of  (h)  The  petition  shall  be  filed,  and 

an  account  in  the  Orphans'  Court  may  notice   of   the   application    shall    be 

be  expressed  in  general  terms.     Lid-  given  for  ten  days  before  the  same  is 

dell  V.  Mc  Vickar,  6  Halst.  44.  made,  to  all  persons  entitled  to  such 


266  FORMS   OF    PLEADINGS. 

administrator,  &c.,  {or  "  executor,")  of  ,  deceased,  of  the 

surplus  money  deposited  in  the  Court  of  Chancery,  in  the  above- 
stated  cause,  for  the  payment  of  the  debts  of  the  said  , 
deceased  ;  the  amount  of  the  personal  estate  that  has  come  to  the 
hands  of  the  said  petitioner  is  dollars;  the  amount  of 
debts  and  expenses  paid  by  him  is  dollars;  and  the 
amount  of  debts  claimed  to  be  due  and  unpaid  is              dollars. 

Yours,  &c., 

Dated,  .  {Signature  of  solicitor  of  petitioner.) 

To 

Order  of  reference  on  foregoing  petition.(a) 

{Title  of  cause.) 

It  appearing  to  the  court  that  ,  administrator,  &c.,  of 

,  deceased,  has  filed  a  petition  in  the  above- entitled  cause, 
setting  forth  that  the  sheriff  of  the  county  of  has  deposited 

in  this  court  the  sum  of  dollars  and  cents,  as  the 

surplus  money  remaining  in  his  hands  arising  from  the  sale  of 
certain  mortgaged  premises,  under  an  execution  issued  out  of 
this  court  in  the  above-stated  cause;  that  ,  widow  of  said 

monej'S,  or  any  part   tliereof,  if  not  cient  part  thereof,  to  the  petitioner,  it 

required  for  the   payment  of  debts ;  shall  be  referred  to  a  master  to  ascer- 

such  notice,  'beside  the  time  and  place  tain  and  report  upon  the  truth  of  the 

of  application,  shall  state  the  amount  matters  in  such  petition  and  account; 

of  the  personal  estate  that  has  come  and  also  how  much  will  be  required 

to   the   hands   of  the   petitioner,  the  for  the  payment  of  the  debts  of  the 

amount  paid  out  for  debts  and   ex-  decedent  above  the  amount  realized, 

penses,  and  the  amount  of  debts  paid  and   likely  to  be  realized,  from  the 

and  claimed  to   be  due  and  unpaid;  personal    estate;    and    also    whether 

such  notice  may  be  served  upon  per-  any  part  of  the  lands  sold  has  been 

sons  who  reside  out  of  the  state,  and  aliened  by  the  heirs  or  devisees  before 

have   not   appeared   in   the   suit,   by  the  sale,  so  as  by  law  to  be  free  from 

setting  up  a  copy  in  the  office  of  the  the  lien  for  the  debts  of  the  decedent, 

clerk  of  this  court,  and  also  mailing  and  what  part,  and  when  and  to  whom 

a   copy  to   the   post-office  address  of  aliened.     And  the  summons  to  attend 

such  persons,  if  the  same  be  known.  such  hearing  before  the  master  shall 

Rule  156.  not  be  required  to  be  served  on  any 

(a)  Unless  the  consent  of  all  inter-  person,   except    such    as    may    have 

ested  in  such  moneys  shall  be  given  entered  an  appearance  on  the  notice 

to  the  payment  of  the  same,  or  a  suffi-  of  the  application.     Rule  157. 


SUEPLUS    MONEY.  2G7 

deceased,  is   entitled  to   her   right  of  dower   in   said   surplus 
money  ;{a)  that  the  personal  estate  of  the  said  ,  deceased, 

that  has  come  to  the  hands  of  the  said  petitioner,  and  been  col- 
lected by  him,  is  dollars  and  cents ;  and  that  there 
is  no  other  personal  estate  of  the  said  intestate  to  be  collected  or 
realized ;  and  that  the  sum  of             dollars  and  cents  has 
been  disbursed  by  said  petitioner  on  account  of  said  estate ;  and 
that  there  was,  at  the  time  of  filing  said  petition,  in  the  hands 
of  said  petitioner,  the  sum  of            dollars  and             cents ;  and 
that  the  debts  due,  or  claimed  to  be  due,  from  the  decedent,  and 
undisputed,  is  the  sum  of            dollars  and             cents  :    It  is 
thereupon,  on  the             day  of            ,  eighteen  hundred  and 
,  ordered,  that  it  be  referred  to             ,  one  of  the  special 
masters  of  this  court,  to  ascertain  and  report  upon  the  truth  of 
the  allegations  of  said  petition  ;  and  also  to  ascertain  and  report 
the  amount  of  the  personal  estate  of  the  said  deceased  that  has 
come  into  the  hands  of  the  administrator  of  the  said  deceased  to 
be  administered ;  and  what  disposition  has  been  made  of  the 
same ;  and  what  amount  of  debts  has  been  paid  by  said  admin- 
istrator, with  the  money  arising  from  said  personal  estate,  and 
the  amount  of  the  debts  and  claims  against  the  estate  of  the 
said  deceased,  and  the  amount  of  money  deposited  in  this  court 
arising  from  the  sale  of  the  mortgaged  premises  in  this  cause,  of 
which  the  said             died  seized ;  and  also  the  amount  to  be  in- 
vested for  the  benefit  of  the  widow  of  the  said  decedent,  out  of 
the  proceeds  of  the  sale  of  the  said  real  estate ;  or  in  case  she 
consents  to  accept  a  sum  in  gross,  in  lieu  of  such  investment, 
then  to  ascertain  and  report  what  amount,  under  all  the  circum- 
stances of  the  case,  should  be  paid  to  such  widow  in  satisfaction 

(a)  The  court  may  order  a  sum  in  elects  to  take  a  gross  sum  in  lieu  of 
gross  to  be  paid  out  of  the  proceeds  of  dower,  her  rights  are  at  once  vested^ 
sale  by  consent  of  the  tenant  in  dower  and  the  fact  of  her  subsequent  death 
or  by  the  curtesy  ;  or  if  no  consent  cannot  affect  the  valuation  made  or  to 
be  given,  may  order  a  sum  to  be  in-  be  made  of  her  interest  in  the  pro- 
vested  for  the  benefit  of  the  person  ceeds  McLaughlin  v.  McLaughlin,  7 
entitled  to  such  estate.  Pamph.  L.,  C.  E.  Gr.  505. 
1887,    p.    179.     Where    the    widow 


268  FORMS   OF   PLEADINGS. 

of  her  said  dower  ;(a)  and  how  much  will  be  required  for  the 
payment  of  the  debts  of  the  said  ,  deceased,  above  the 

amount  realized,  or  likely  to  be  realized,  from  the  personal  estate; 
and  whether  the  whole  or  what  part  of  the  money  deposited 
in  this  court  should  be  paid  to  said  petitioner,  as  administrator 
as  aforesaid,  to  be  by  him  applied  in  payment  of  debts  of  said 
deceased ;  and  whether  any  part  of  the  lands  has  been  aliened 
by  the  heirs-at-law  of  said  ,  deceased,  before  the  said  sale, 

so  as  to  be  free  from  the  debts  of  the  decedent,  and  what  part, 
and  when  and  where  situate. 

And  said  master  is  to  report  with  all  convenient  speed, 
and  all  further  equity  is  reserved  until  the  coming  in  of  his 
report. 

Master's  report  in  pursuance  of  foregoing  order. 

{Title  of  cause,  and  mentioning  petition.) 

In  pursuance  of  an  order  of  this  court,  made  in  the  above- 
stated  cause,  bearing  date  the  day  of  ,  eighteen 
hundred  and  ,  whereby  it  was  referred  to  the  subscriber, 
one  of  the  special  masters  of  this  court,  to  ascertain  the  truth 
of  the  allegations  contained  in  said  petition,  &c.,  and  among 
other  things,  whether  the  petitioner  is  entitled  to  the  surplus 
money  in  said  cause,  and  to  make  report  thereon  :  I  report  that 
I  have  been  attended  by  the  solicitor  of  the  petitioner,  ("  and 
by  ,  the  solicitor  of  the  defendant,  ,")  and  have 
taken  proofs  in  said  matter,  which  proofs  are  hereto  annexed, 
and  make  part  of  this  report. 

And  I  further  report,  that  all   the  allegations  contained  in 
said  petition  are  true ;  that  the  sheriff  of  the  county  of 
has  deposited  with  the  clerk  of  this  court  the  sum  of  dol- 

lars and  cents,  as  the  surplus  money  arising  from  the  sale 

(a)  In  ascertaining  the  proper  sum  spective  of  the  result  of  the  applica- 

in  gross  to  a  tenant  in  dower,  or  by  tion  of  the  rules,  the  court  should  de- 

the  curtesy,  in  commutation  of  such  termine  what,  under  the  circumstances 

interest,   the   rules   of   the   Court   of  of  each  case,  is  a  reasonable  sum  to  be 

Chancery  on  the  subject  should  not  be  paid  in  commutation.     Cronkright  v. 

taken  as  an  absolute  guide;  but  irre-  Haulenheck,  10  C.  E.  Gr.  513. 


8UBPLU8   MONEY.  269 

of  certain  mortgaged  premises  sold  by  virtue  of  an  execution 
issued  out  of  this  court,  and  sold  as  the  premises  of  , 

deceased,  to  satisfy  a  mortgage  given   by  one  ,  former 

owner  of  the  said   mortgaged   premises,  and  ,  his  wife, 

to  one  ,  and   by  the  said  assigned  to  the  com- 

plainant, ;  that  the  petitioner,  after  the  decease  of  the 

said  ,  was  granted  letters  of  administration  of  the  estate 

of  the  said  ,  deceased,  by  the  surrogate  of  the  county  of 

,  in  this  state. 

And  I  further  report,  that  it  appears  that  the  said 
died  insolvent ;  that  the  petitioner,  ,  has  applied  all  the 

assets  of  the  said  deceased  to  the  payment  of  his  debts,  amount- 
ing to  a  dividend  of  per  cent,  on  the  claims  filed  against 
said  estate;  and  that  no  other  assets  remain  for  further  dividend, 
except  the  amount  of  surplus  money  deposited  in  this  cause. 

And  it  further  appears,  that  ,  the  widow  of  , 

deceased,  is  entitled  to  an  estate  in  dower(a)  in  the  said  surplus 
money ;  that  she  is  of  the  age  of  years,  and  in  good  health, 

and  has  an  average  expectancy  of  life;  and  {if  she  has  consented 
to  accept  a  sum  in  gross)  that  the  sum  in  gross,  to  which  she  is 
entitled  out  of  said  surplus  money  in  satisfaction  of  her  said 
estate  of  dower  therein,  is  the  sum  of  dollars.     {Or  in 

case  of  a  married  woman,  say,  "And  that  it  further  appears, 
that  ,  the  wife  of  ,  is  entitled  to  an  inchoate  right 

of  dower  in  said  surplus  money." 

And  I  further  certify  and  report,  that  the  schedule  annexed 
to  this  report  contains  a  statement  of  the  amount  to  be  paid 
to  the  said  as  aforesaid,  to  which,  for  greater  certainty,  I 

refer. 

And  I  further  certify  and  report,  that  *  the  said  ,  ad- 

ministrator as  aforesaid,  is  entitled  to  the  remainder  of  the  said 
surplus  money,  after  deducting  said  gross  sum,  in  lieu  of  dower, 
for  the  payment  of  the  debts  of  the  said  decedent,  to  be  admin- 
istered by  him  according  to  law ;  (or  in  case  of  inchoate  right  of 
dower,  after  *  add,  "after  deducting  from  the  one-fourth  part  of 
said  surplus  money,  (or  as  the  case  may  be,)  the  sum  of 

(a)  See  Pamph.  L.,  1887,  p.  179. 


270  FORMS   OF   PLEADINGS. 

dollars,  being  the  one-third  of  the  share  in  said  surplus  money 
of  ,  husband  of  said  ,  to  be  invested   under  the 

order  of  this  court,  and  the  income  thereof  during  the  lifetime 
of  {the  husband)  to  be  paid  to  the  lienors  upon  such  share  as 
aforesaid,  and  upon  the  death  of  {the  husband)  said  income  to  be 
paid  to  {the  wife)  during  her  lifetime,  and  upon  her  death  to  be 
disposed  of  according  to  law,(a)  the  remainder  of  the  said  one- 
fourth  part  of  the  said  surplus  money  to  be  paid  to  the  said 
,  and  that  the  remaining  three-fourth  parts  of  said  sur- 
plus moneys  be  paid  to  the  petitioner,  administrator  as  afore- 
said,") {conclude  as  above.) 

Respectfully  submitted,  this  day  of    '  ,  eighteen 

hundred  and 

{Signature  of  master.) 

{Annex  schedule  showing  calculation  in  figures.) 

Order  for  payment  of  surplus  money  to  adminis- 
trator, &c.(6) 

{Title  of  cause.) 

This  matter  being  opened  to  the  court,  &c.,  and  it  appearing 
by  the  report  of  ,  one  of  the  special  masters  of  this  court, 

to  whom  was  referred  the  petition  of  ,  administrator,  &c., 

(a)  There  is  no  direct  provision  of  real  estate  has  been  sold  and  conveyed 

law  for  the  protection  of  an  inchoate  by  virtue  of  any  judgment  or  decree, 

right  of  dower  in  the  equity  of  re-  or  by  virtue  of  any  deed,  &c.,  executed 

demption  in  foreclosure  cases.     But  it  by  the  husband,  or  by  his  assignee  in 

is  a  well-settled  rule  that  the  equity  bankruptcy,  in  which  the  wife  shall 

of  the  wife  in  the  mortgaged  premises  not  have  joined,  may  release  her  in- 

is  paramount  to  the  claim  of  a  judg-  choate   right  of  dower  in  such   real 

ment  creditor,  who  has  only  a  general  estate  by  her  separate  deed.     Pamph. 

lien  upon  the  husband's  interests  in  L,  1890,  p.  40. 

the  premises,  subject  to  the  mortgage.  (6)  No  order  shall  be  made  for  the 

Burnet  v.  Burnet,   1   Dick.  Ch.  Bep.  payment   of  such   moneys,    unless   it 

151.      Therefore,   in    an    application  shall  appear  that  such  executor  or  ad- 

for  the  distribution  of  the  surplus,  the  ministrator  shall  have  administered, 

inchoate   right   of  dower   should    be  as    nearly    as     practicable,    all     the 

protected  in  the  manner  set  forth  in  moneys   received   by   him,  and   used 

the  order.  due  diligence  to  collect  such  as  have 

A  married  woman  whose  husband's  not  come  to  his  hands.     Bute  158. 


SURPLUS   MONEY.  271 

of  ,  deceased,  filed  in  this  cause,  whicii  said  report  bears 

date  on  the  day  of  ,  eighteen  hundred  and  , 

that  the  sheriff  of  the  county  of  has  deposited  with  the 

clerk  of  this  court   the  sum  of  dollars,  as  the  surplus 

money  arising  from  the  sale  of  certain  mortgaged  premises  sold 
by  virtue  of  an  execution  issued  out  of  this  court  in  the  above- 
stated  cause,  as  the  premises  of  ,  deceased,  to  satisfy  a 
certain  mortgage  given  by  to  the  complainant ;  and  that 
,  the  widow  of  said  ,  deceased,  who  is  entitled  to 
dower  in  the  said  surplus  money,  has  consented  to  accept  such 
sum  in  gross,  in  full  satisfaction  of  her  interest,  as  shall  be 
approved  by  the  Chancellor,  {or,  "  has  consented  to  release  all 
her  interest  in  the  said  surplus  money,  upon  the  investment  of 
such  sum  as  the  Chancellor  may  deem  reasonable,  in  such  man- 
ner that  the  interest  thereof  shall  be  paid  to  her  during  her 
life ; ")  and  that  the  sum  of  dollars  should  be  *  paid  to 
her  in  satisfaction  of  her  said  dower,  {or  after  *,  "  invested, 
under  the  direction  of  the  Chancellor,  for  the  benefit  of  the  said 
; "  or,  if  the  owner  of  ike  mortgaged  premises  be  living, 
and  he  have  a  wife  entitled  to  an  inchoate  right  of  dower  in  the 
surplus,  insert  the  language  of  the  master's  report  accordingly.) 

And  it  further  appearing  by  said  report,  that  the  whole  of  the 
said  {or,  "  the  remainder  of  the  said  ")  surplus  money  should 
be  paid  to  the  said  petitioner,  administrator  as  aforesaid,  for  the 
payment  of  the  debts  of  the  said  ,  deceased,  to  be  by  him 

administered  according  to  law,  {or  recite  the  report  of  the  master, 
as  the  case  may  be:)  It  is  thereupon,  on  this  day  of  , 

on  motion  of,  &c.,  ordered,  that  the  said  master's  report  be 
and  the  same  is  hereby  confirmed  accordingly.  And  it  is 
further  ordered,  that  the  clerk  of  this  court  *  do  pay  in  the 
first  place  to  the  said  ,  widow  of  ,  deceased,  the 

sum  of  dollars,  in  full  satisfaction  of  her  dower  in  said 

surplus  moneys ;  {or  after  *  add,  "  after  deducting  from  the 
said  surplus  money  the  sum  of  dollars,  which  is  hereby 

adjudged  to  be  a  reasonable  sum,  to  be  invested  in  such  manner 
that  the  interest  shall  be  paid  to  the  said  for  the  dura- 

tion of  her  estate  in  said  surplus  moneys ; "  or  in  case  of  an 
inchoate  right  of  dower,  after  *  say,  "  after  deducting  from  said 


272  FORMS  OF   PLEADINGS. 

surplus  moneys  the  sum  of  dollars,  being  one-third  of  the 

same,  to  be  invested,  and  the  income  thereof  to  be  enjoyed  by 
said  {the  married  woman,)  after  the  death  of  her  husband, 

during  her  life,"  {or  as  in  the  report;)  and  secondly,  after 
deducting  his  lawful  commissions  upon  the  said  deposit,  he 
do  pay  the  remainder  thereof,  together  with  the  accumulations 
on  the  said  surplus  money,  according  to  the  rule  of  this  court, 
to  the  said  petitioner,  or  to  his  solicitor,  upon  said  petitioner 
filing  in  this  court  his  bond  to  the  Ordinary  of  this  state,  and 
his  successors,  in  double  the  sum  hereby  directed  to  be  paid  to 
him,  with  two  sufficient  sureties,  residents  of  this  state,  with 
condition  similar  to  that  prescribed  by  law  for  bonds  upon 
orders  of  the  Orphans'  Court  for  the  sale  of  lands  for  the  pay- 
ment of  debts. 

Bond  by  executor  or  administrator  on  payment 
of  surplus  money  .(a)  Know  all  men  by  these  presents, 
that  we,  ,  of  ,  and  and  ,  of  ,  are 

held  and  firmly  bound  unto  the  Ordinary  of  the  State  of  New 
Jersey,  in  the  sum  of  dollars,  lawful  money  of  the  United 

States  of  America,  to  be  paid  to  the  said  the  Ordinary  of  the 
State  of  New  Jersey,  and  his  successors  ;(6)  to  which  payment 
well  and  truly  to  be  made,  we  bind  ourselves,  our  and  each  of 
our  heirs,  executors  and  administrators,  jointly  and  severally, 
firmly  by  these  presents.     Sealed  with  our  seals.     Dated  this 

day  of  ,  in  the  year  eighteen  hundred  and 

Whereas,  the  said  has  been  duly  appointed  by  the  sur- 

rogate of  the  county  of  ,  administrator,  <fec.,  {or  as  the  case 

may  be,)  of  ,  late  of  ,  deceased ;  and  whereas,  in  a 

certain  suit  in  the  Court  of  Chancery  of  New  Jersey,  wherein 

was  complainant,  and  and  others  were  defendants, 

(a)  No  money  shall  be  paid  to  an  condition  similar   to   that   prescribed 

executor  or  administrator  on  an  ap-  by  law  for  bonds  upon  orders  of  the 

plication  for  surplus  moneys,  until  he  Orphans'  Court  for  the  sale  of  lands 

shall  have  filed  in  the  court  his  bond  for  the  payment  of  debts.     Mule  158 ; 

to  the  Ordinary,  in  double  the  sum  Mev.,  ^' Orphans^  Courts,"  ^  75. 
directed  to  be  paid,  with  two  sufficient  (6)  Halsted  v.  Fowler,  2  Zab.  48. 

sureties,  residents  of  this  state,  with 


MOTIONS.  273 

under  and  by  virtue  of  a  decree  of  the  said  court,  certain  lands, 
the  property  of  the  said  ,  deceased,  were  ordered  to  be  sold 

to  pay  and  satisfy  a  certain  mortgage  thereon  ;  and  the  surplus 
money  arising  from  such  sale,  amounting  to  dollars,  was 

paid  by  the  sheriff  of  the  county  of  into  the  said  Court  of 

Chancery ;  and  whereas,  by  an  order  of  the  said  court,  the  said 
surplus  money  has  been  ordered  to  be  paid  to  the  said  adminis- 
trator for  the  payment  of  the  debts  of  the  said  ,  deceased, 
according  to  law : 

Now,  the  condition  of  this  obligation  is   such,  that  if  the 
above  bounden  ,  administrator   as  aforesaid,  shall    well 

and  truly  administer  the  said  surplus  money,  and  further  do 
make,  or  cause  to  be  made,  a  just  and  true  account  of  his  ad- 
ministration, within  twelve  months  from  the  date  of  the  above 
obligation,  and  the  surplus  money  which  shall  be  found 
remaining  upon  the  account  of  such  surplus  money  so  ordered 
to  be  paid  as  aforesaid,  (the  same  being  first  examined  and 
allowed  by  the  judges  of  the  Orphans'  Court  of  the  county  of 
,  or  other  competent  authority,)  shall  distribute  and  pay 
unto  such  person  or  persons  respectively,  as  is,  are  or  shall  be 
by  law  entitled  to  receive  the  same,  then  the  above  obligation  to 
be  void,  and  of  no  effect,  otherwise  to  be  and  remain  in  full 
force  and  virtue.  {Signature  of  principal.)    [l.  s.] 

{Signature  of  surety.)         [l.  s.] 
{Signature  of  surety.)         [l.  s.] 

Sealed  and  delivered  in  the  presence  of — 


INTERLOCUTORY    APPLICATIONS    AND    OTHER 
PROCEEDINGS  IN   A   CAUSE. 

Notice  of  motion,  (a) 

(Title  of  cause.) 
Take  notice,  that  I  shall  apply  to  the  Chancellor  of  this  state, 
*  on  the  first  day  of  the  next  regular  term  of  this  court,  to  be 

(a)    When   the   application   to    be       does   not   come   within   that   class  of 
made  to  the  court  is  not  of  course,  or      special  applications  which  the  court 

S 


274 


FORMS  OF   PLEADINGS. 


held  at  the  state-house,  in  Trenton,  on  Tuesday,  the  day 

of  ,  &c.,  (or  after  *,  "  on  Tuesday,  or  '  Monday,'  if  at 

chambers,   the  day  of  next,   or  '  instant,'  at    ten 


permits  to  be  made  ex  parte,  a  state- 
ment in  writing  of  the  terms  of  the 
motion  must  be  served  upon  the  ad- 
verse party  or  his  solicitor,  before  the 
day  on  which  the  motion  is  intended 
to  be  made ;  this  statement  is  termed 
a  notice  of  motion.  2  Dan.  Ch.  Pr. 
1593.  A  notice  of  motion  must  be 
properly  entitled  in  the  cause  or  mat- 
ter in  which  the  application  is  to 
be  made ;  it  must  be  correctly  ad- 
dressed to  the  solicitor  of  the  party 
or  parties  intended  to  be  affected  by  it, 
or  to  the  party  himself,  where  he 
acts  in  person,  and  be  signed  by  or  in 
the  name  of  the  solicitor,  or  firm  of 
solicitors,  of  the  party  moving,  or  of 
the  party  himself,  where  he  acts  in 
person.  A  notice  of  motion  by  a 
party  suing  or  defending  in  forma 
pauperis,  (except  for  the  discharge  of 
his  solicitor,)  must  be  signed  by  the 
solicitor  of  such  pauper.  A  notice  of 
motion  must  state  the  day  on  which 
the  motion  is  to  be  made,  which  must 
be  one  of  the  days  appointed  for 
motions,  unless  special  leave  has  been 
obtained  to  give  the  notice  of  motion 
for  another  day,  in  which  case  the 
fact  of  such  special  direction  having 
been  made,  must  be  expressed  in  the 
notice.  See  rule  5.  The  notice,  how- 
ever, though  it  expresses  the  day 
when  the  motion  is  to  be  made, 
usually  adds,  "or  as  soon  thereafter 
as  counsel  can  be  heard,"  and  when- 
ever a  motion  is  to  be  made,  "  by 
leave  of  the  court,"  the  notice  ought 
to  mention  that  it  is  so  made,  other- 
wise the  adverse  party  may  disregard 
it.  2  Dan.  Ch.  Pr.  1594.  All 
notices  of  motions,  &c.,  must  be 
served  on  the  solicitor  of  the  adverse 
party,  if  a  solicitor  be  concerned  for 


him  ;  but  if  no  solicitor  be  concerned 
for  him,  the  service  may  be  on  the 
paily,  or  left  at  his  usual  place  of 
residence,  or  if  not  resident  in  this 
state,  by  setting  up  the  same  in  the 
office  of  the  clerk  of  the  court.  Mule 
20.  Notice  of  an  application  in  any 
legal  proceeding  or  in  any  proceeding 
under  a  statute,  where  no  provision  of 
law  exists  for  such  notice  or  the  time 
or  mode  of  service  thereof,  may  be 
served  either  by  personal  service  in 
or  out  of  the  state,  by  mailing  to  the 
parties  at  their  last  known  place  of 
residence,  or  by  publication  in  one  or 
more  newspapers,  published  either  in 
or  out  of  the  state,  for  such  period  of 
time  as  the  court  shall  determine.  A 
notice  given  pursuant  to  an  order  of 
the  court,  made  upon  ex  parte  applica- 
tion, in  any  of  the  modes  above  pre- 
scribed, shall  be  deemed  and  taken  to 
be  a  good  and  legal  notice  of  such 
application.  Pamph.  L.,  1889,  p. 
294.  Every  Monday  shall  be  motion- 
day  at  the  chancery  chambers,  in 
Camden  and  Jersey  City,  and  every 
Tuesday  at  the  state-house,  at  Trenton, 
and  the  chancery  chambers  in  Newark, 
both  in  term  and  vacation,  except 
the  third  and  fifth  Mondays  and 
Tuesdays  in  July  and  the  Mondays 
and  Tuesdays  in  August,  save  the 
second  Tuesday  in  that  month,  at 
Trenton  ;  the  second  Monday  at  Jersey 
City;  the  third  Tuesday  at  Newark, 
and  the  third  Monday  at  Camden. 
All  motions  on  said  days  may  be 
heard  by  the  Chancellor  or  the  Vice 
Chancellors,  one  of  whom  will  attend 
for  that  purpose;  provided,  that 
when  such  regular  motion-day  shall 
fall  on  a  legal  holiday,  the  day  follow- 
ing shall  be  the  motion-day.     Eule  4. 


MOTIONS. 


27.5- 


o'clock  in  the  forenoon,  or  as  soon  thereafter  as  counsel  can  be 
heard,  at  the  state-house,  in  the  city  of  Trenton,  or,  '  at  the 
chancery  chambers,  in  the  city  of  /  ")  {or  as  the  case 

may  be,)  for  an  order  that  {specify  the  object  of  the  motion,^ 
if  the  motion  is  to  be  made  on  affidavits,  add,  ''  which  motion 
will   be  founded  on  afiB(^avits,  copies  of  which  are   herewith 

served  on  you.") 

Yours,  &c., 

{Signature  of  solicitor.) 
To  ,  Solicitor  of 

Affidavit  of  service  of  notice  of  motion.(a) 

{Title  of  cause.) 
State  of  ,  1 

county  of  ,   J 

,  of  ,  in    said    county,  being   duly   sworn  {or 

"  affirmed,")  says — that  on  the  day  of  ,  instant,  this 

deponent  served  upon  ,  the  solicitor  of  the  complainant 


All  motions  in  causes  not  referred  to 
the  Vice  Chancellors  shall  be  made 
on  such  motion-days,  and  notice  of  a 
motion  at  any  other  time  shall  be  of 
no  avail,  unless  specially  directed  by 
the  Chancellor,  and  unless  the  fact  of 
such  special  direction  having  been 
made,  be  expressed  in  the  notice. 
Mule  5.  Notices  of  motions  to  dis- 
solve injunctions  shall  be  served 
eight  days ;  of  motions  to  extend  the 
time  for  filing  pleadings  and  other 
papers,  three  days ;  and  of  all  other 
special  motions,  five  days ;  and  such 
notices  of  said  motions,  respectively, 
shall  be  sufficient.  Rule  141.  A 
notice  of  a  motion  to  dissolve  an  in- 
junction for  irregularity,  &c.,  should 
state  the  irregularity.  Miller  v. 
Traphagen,  2  Hal.  Ch.  200.  It  is 
necessary  that  everything  a  party 
wishes  to  obtain  on  his  motion,  should 
be  expressed  in  the  notice.  2  Dan. 
Ch.  Pr.  1599.  Where  the  object  of 
a  motion  is  to  prevent  the  perform- 


ance of  some  act  which,  if  done, 
would  be  attended  with  irreparable 
injury,  and  there  is  danger  that  the 
object  would  be  defeated  by  notice,  it 
will  be  dispensed  with.  But  where,^ 
in  such  case,  there  is  no  danger  that 
the  object  of  the  motion  would  be 
defeated  if  notice  were  given,  an  ex 
parte  motion  will  not  be  permitted. 
1  Barb.  Ch.  Pr.  568.  A  motion  may 
be  made  by  or  on  behalf  of  any  of 
the  parties  to  the  record ;  provided, 
such  party  is  not  in  contempt.  But 
an  individual  who  is  not  a  party  to 
the  record,  cannot,  in  general,  be 
allowed  to  apply  by  motion.  No  one 
but  a  party  to  a  suit  can  make  any 
motion  in  it,  except  for  the  purpose 
of  being  made  a  party.  Linn  v. 
Wheeler,  6  C.  E.  Gr.  231. 

(a)  After  notice  of  motion  has  been 
served,  the  party  serving  the  same 
should  make  an  affidavit  of  the  ser- 
vice, (unless  service  be  acknowledged 
as  hereafter  mentioned,)  to  be  used 


276 


FORMS  OF  PLEADINGS, 


[or  "  defendant ")  in  this  cause,  a  copy  of  the  affidavits  and  a 
copy  of  the  notice  of  motion  hereto  annexed,  by  delivering  the 
same  to  him  personally,  {or  as  the  case  may  be.     See  form  on 

page  189,  ante.) 

(Signature.) 
Sworn  {or  "  affirmed,")  &c. 

Order  for  costs  where  the  party  serving  the  notice 
of  motion  does  not  attend. (a) 

{Title  of  cause.) 
This  matter  being  opened  to  the  court,  &c.,  and  it  appearing 
that  the  said  complainant  {or  "  defendant ")  served  due  notice  of 
a  motion  to  be  made  in  this  cause  on  the  day  of 

last  past ;  and  that  the  said  defendant  {or  "  complainant ")  did 
not  attend  and  move  accordingly :  It  is,  on  this,  &c.,  ordered, 
that  the  said  defendant  {or  "complainant")  pay  to  the  com- 
plainant {or  "  defendant ")  his  costs  of  said  notice  and  of  this 
order,  to  be  taxed. 


when  the  motion  is  made,  in  case  the 
party  served  should  fail  to  appear. 
This  affidavit  should  state  the  time 
and  manner  of  the  service,  and  should 
be  attached  to  or  endorsed  upon  the 
original  papers.  A  simpler  method 
of  proving  service  than  by  affidavit, 
is  to  take  an  admission,  signed  by  the 
opposite  party  or  his  solicitor,  of  ser- 
vice of  a  copy  of  the  notice,  dated  a 
sufficient  number  of  days  before  the 
time  the  motion  is  to  be  made,  or  an 
acknowledgment  of  due  and  legal  ser- 
vice, without  a  date.  1  Barb.  Ch. 
Pr.  574,  Generally,  a  party  making 
a  successful  motion  is  entitled  to  his 
costs.  MS.,  Williamson,  C,  Jan'y, 
1828.  A  motion  was  granted,  but 
costs  refused,  because  they  were  not 
sought  for  in  the  notice.  Little  v. 
Johnson,  1  3IoH.  234 ;  see  contra, 
Magrath  v.  Veitch,  Id. 

A  party  shall  not  be  allowed  costs 
against  his  adversary  for  any  amend- 
ment, or   for  any  motion  occasioned 


by  his  own  fault,  mistake  or  laches 
though  he  may  by  his  decree  recover 
costs  of  suit ;  and  when  the  court 
makes  no  special  order  .respecting 
costs,  a  party  making  a  successful 
motion  or  successfully  opposing  a 
motion  shall  have  costs  against  the 
other  party.     Rule  106. 

(a)  If  a  party  gives  notice  of  a 
motion,  and  does  not  move  accord- 
ingly, he  shall,  upon  production  of 
the  notice,  pay  to  the  other  side  costs, 
to  be  taxed,  unless  the  court,  upon  a 
consideration  of  the  circumstances  of 
the  case,  shall  direct  otherwise.  Rule 
105.  It  was  held,  that  in  order  to 
obtain  the  costs  of  an  abandoned 
motion,  the  respondent  must  mention 
the  motion  to  the  court  not  later  than 
the  motion-day  next  after  the  day  for 
which  the  notice  was  given.  Wood- 
cock V.  Railway  Co.,  10  Hare  Ap.  54, 
n.;  17  Jur.  33,  F.  C.  K.;  Gorely  v. 
Gorely,  25  Beav.  234 ;  In  re  Smith,  2^ 
Beav.  284, 


ORDERS   AND   AFFIDAVITS. 


277 


General  form  of  order.(a) 

[Ittle  of  cause.) 

On   reading   and   filing  {recite  papers  on  which  motion  was 
founded,)  and  on  motion  of  ,  of  counsel  with  the  com- 

plainant {or  "  defendant,")  no  one  appearing  to  oppose,  although 
due  notice  has  been  given  of  this  application,  {or,  "  and  on 
hearing  ,  of  counsel  with  the  defendant  or  '  complainant,' 

in  opposition  thereto :  ")  It  is,  on  this  day  of  ,  &c., 

ordered,  &c. 


(a)  All  orders  of  course  (called 
common  rules)  may  be  entered  with 
the  clerk,  in  the  common  rule-book 
kept  in  his  office,  at  the  instance  of 
the  party  or  his  solicitor,  and  at  the 
peril  of  the  party  taking  the  same. 
The  day  on  which  the  rule  is  made, 
must  be  noticed  in  the  entry  thereof. 
Rule  19.  It  is  usual  for  the  clerk  to 
draw  up  and  enter  such  rules  on  re- 
quest of  the  solicitor  of  the  party.  All 
orders  requiring  the  signature  of  the 
Chancellor,  whether  made  upon  notice 
or  ex  parte  or  by  consent,  are  made  on 
special  applications. 

An  application  to  enter  an  order 
nunc  pro  tunc  is  a  motion  of  course, 
where  the  party  entitled  to  the  order 
comes  recently  ;  but  after  a  length  of 
time,  there  ought  to"  be  notice  of  the 
motion.  Anon.,  S  Atk.  521.  An  order 
made  on  a  hearing  before  the  Vice 
Chancellor  or  an  advisory  master,  is 
in  the  same  form  as  that  made  on  a 
hearing  before  the  Chancellor.  Orders 
advised  by  the  Vice  Chancellor  or  an 
advisory  master,  are  signed  by  the 
Chancellor,  as  a  matter  of  course, 
upon  being  presented  to  him. 

The  complainant's '  name  must 
always  be  placed  first,  whichever 
party  may  draw  up  the  order.  It  is 
not  usual  in  New  Jersey  to  recite  the 
names  of  all  the  parties  at  the  head 


of  the  order  or  decree.  It  is  sufficient 
to  entitle  it  in  the  name  of  the  com- 
plainant against  the  first  defendant, 
adding  the  words  "and  others,"  with- 
out setting  forth  the  names  of  all  the 
defendants.  The  order  is  prefaced 
with  a  brief  description  of  the  papers 
upon  which  it  is  founded,  and  of  the 
names  of  the  counsel  of  the  respective 
parties,  who  appeared  in  support  of, 
or  in  opposition  to,  the  application. 
In  drawing  orders,  brevity  should  be 
studied,  so  far  as  may  be  consistent 
with  the  statement  of  the  grounds 
upon  which  the  order  is  made,  and 
showing  that  its  entry  is  regular. 
The  order  concludes  with  the  ordering 
part,  which  contains  the  directions  of 
the  court  upon  the  matter  of  the  ap- 
plication. 

Where  a  proceeding  in  a  cause  is 
required  to  be  within  a  certain  num- 
ber of  days  after  the  entry  of  an  order, 
the  whole  of  the  first  day  is  excluded 
in  the  computation  of  time.  Thome 
V.  Mosher,  5  C.  E.  Gr.  257.  It  has 
been  held  that  where  an  order  was 
required  to  be  complied  with  "  forth- 
with," tli6  party  was  not  entitled  to 
twenty-four  hours  after  service  of  the 
order  to  comply  therewith,  but  only 
the  time  absolutely  necessary  for 
compliance.  The  People  v.  Brower, 
4    Paige    405.     "Month"    means    a 


278 


FORMS   OF   PLEADINGS. 


S8. 


General  form  of  an  affidavit.(«) 

{Title  of  cause.) 

State  of  , 

county  of  , 

,  of  ,  in  the  county  and  state  aforesaid,  {or  as  the 

ease  may  be,)  being  duly  sworn,  deposes  and  says,  {or,  "alleging 

himself  to  be  conscientiously  scrupulous  of  taking  an  oath,  and 

being  duly  solemnly  affirmed,  on  his  solemn  affirmation  says  ") 

— that,  &c. 

{Signature.) 

Sworn  {or  "  affirmed  ")  and  sub- 

•scribed  before  me,  this,  &c. 

{Signature  and  addition  of  ofice.) 


■calendar  month.  Rev.,  "Sialutes,''  §  10. 
An  irregular  order,  though  made  ex 
jiarle,  is  not  void,  but  remains  in  force, 
until  it  is  set  aside  by  the  court,  or  is 
waived.  Hunt  v.  Wallis,  6  Paige  371 ; 
Body  V.  Kent,  1  il/er.  361.  The  i^arty 
injured  by  an  improper  order,  or  one 
obtained  by  inadvertence  or  mistake, 
should  apply  to  vacate  the  order. 
Higbie  v.  Edgarton,  3  Paige  253. 

Where  the  court  directs  a  party  to 
do  an  act  within  so  many  days  after 
service  of  the  order,  a  copy  must  be 
served  ;  but  where  the  act  is  directed 
to  be  done  within  so  many  days  after 
the  date  or  of  the  entering  of  the  order, 
the  court  intends  the  party  shall  take 
notice  of  the  order  without  service  or 
express  notice  thereof.  1  Barb.  Ch. 
Pr.  *590. 

(a)  Affidavits  are  generally  resorted 
to  in  support  of,  and  in  opposition  to, 
motions  and  petitions,  or  for  certify- 
ing the  service  of  process,  notices,  &c. 
They  may  be  made  by  the  parties  in 
the  suit  during  the  progress  thereof; 
but  they  can  only  be  read  on  motions, 
&c.  They  are  inadmissible  as  evi- 
dence at  the  hearing.     1  Lil.  Abr.  52. 


As  a  general  rule,  they  should  be 
made  by  a  person  who  has  a  personal 
knowledge  of  the  facts.  See  Young- 
blood  V.  Schamp,  2  McCart.  43.  It 
is  not  necessary  to  the  validity  of  an 
affidavit  that  the  residence  of  the  de- 
ponent should  be  stated  in  it,  or  that 
it  should  show  the  town  or  county 
where  it  was  taken  Benson  v.  Ben- 
nett, 1  Dutch.  166;  Perkins  v.  Collins, 
2  Gr.  Ch.  482.  A  party  who  makes 
an  affidavit  to  oppose  a  motion  is  only 
authorized  to  state  facts ;  it  is  scandal- 
ous or  impertinent  to  draw  inferences, 
or  to  state  arguments  in  the  affidavit 
reflecting  on  the  adverse  party  or  his 
solicitor.  In  re  Burton,  1  Buss.  380. 
Affidavits  should  be  fairly  and  legibly 
written,  without  blots  or  interlineations 
of  any  words  of  substance.  For  man- 
ner of  signing  the  affidavit  and  jurat, 
see  notes  to  page  113,  ante. 

It  has  been  decided,  that  where 
nothing  appears  to  show  that  an  affi- 
davit was  taken  out  of  the  jurisdiction 
of  the  officer  before  whom  it  was 
sworn,  it  will  be  presumed  to  have 
been  taken  within  the  limits  of  his 
jurisdiction.     Parker  v.  Baker,  S  Paige 


ELECTION. 


279 


Election  to  proceed  with  suit  in  chancery. 

{Title  of  cause.) 
In  pursuance  of  an  order  of  this  court  ma^e  in  this  cause, 
and  dated  the  day  of  ,  &c.,  the  complainant  doth 

hereby  elect  to  proceed  in  this  court. 

{Signature  of  solicitor.) 
Dated,  &c. 


Order  that    the   complainant  elect    to  proceed  at 

law  or  in  equity. (a)     Upon  opening  this  matter  to  the  court 
by  ,  of  counsel  with  the  defendant^,  it  appearing  that  the 


428.  AflBdavits  taken  before  a  master 
in  chancery  of  this  state,  may  be 
sworn  to  out  of  this  state.  Bev., 
-"Oaths"  §  5  ;  see  Rev.,  "Conveyances,'' 
^  7. 

An  affidavit,  when  offered  to  be 
read,  must  appear  to  have  been  taken 
before  the  proper  officer,  and  in  com- 
pliance with  all  legal  requirements. 
State  V.  Green,  3  Gr.  88  An  affidavit 
taken  before  a  solicitor  or  counsel  in 
the  cause  is  irregular.  Dallas  v. 
Jeffers,  1827 ;  see  also  Den  v.  Geigei;  4 
Hal.  225.  In  a  civil  cause,  the  ad- 
ministering an  oath  or  affirmation  is 
presumed  to  be  correct  and  legal. 
Coxe  V.  Field,  1  Gr.  215.  A  copy  of 
every  affidavit  intended  to  be  used  on 
the  argument  of  any  special  motion, 
or  of  any  other  special  matter  before 
^the  court  of  which  notice  shall  be 
necessary,  shall  be  served  on  the  ad- 
verse party  at  least  four  days  before 
the  day  of  argument,  or  shall  be  taken 
on  two  days'  notice  at  least  of  the 
time  and  place  of  taking  the  same; 
and  all  affidavits  made  use  of  in  court 
•shall  be  first  filed  with  the  clerk ; 
and  no  writ,  order  or  other  proceed- 
ing, grounded  upon  an  affidavit  or 
affidavits,  shall  be  issued,  filed  or 
•entered  by  the  clerk,  unless  the  affi- 


davit or  affidavits  upon  which  it  shall 
be  grounded  shall  have  been  pre- 
viously filed.  A'«/c  138.  Affidavits 
and  petitions  duly  sworn  to,  on  which 
rules  to  show  cause  may  be  granted, 
if  served  as  affidavits,  may  be  used  on 
the  hearing  of  the  order  to  show  cause. 
Iiulf  139.  Affidavits  upon  which  are 
founded  applications  to  extend  the 
time  for  taking  testimony,  or  filing 
pleadings  or  other  papers,  shall  be 
served  for  three  days;  but  counter- 
affidavits  may  be  read  without  notice. 
Bnle  140. 

(a)  Where  the  complainant  is  suing 
both  at  law  and  in  equity  at  the  same 
time,  for  the  same  matter,  the  defend- 
ant is  entitled  to  an  order  that  the 
complainant  elect  whether  he  will 
proceed  with  the  suit  in  equity,  or 
with  the  action  at  law.  Dan.  Ch.  Pr. 
815 ;  int.  PL  204 ;  Carlisle  v.  Coojjer, 
8  C.  E.  Gr.  241.  The  complainant 
will  not  be  put  to  his  election 
unless  the  suit  at  law  is  for  the  same 
cause,  and  the  remedy  afforded  co- 
extensive and  equally  beneficial  with 
the  remedy  in  equity.  Way  v.  Bragaw, 
1  C.  E.  Gr.  214.  If  parties  bring  suit 
in  another  state,  and  while  that  suit 
is  pending  bring  another  action  here 
for  the  same  cause,  during  the  pro- 


280 


J?ORMS   OF   PLEADINGS. 


complainant  prosecutes  the  defendants  both  at  law  and  in  thi& 
court  for  one  and  the  same  matter,  whereby  the  defendants  are 
doubly  vexed  and  put  to  unnecessary  costs  and  expenses :  It  is 
thereupon,  on  this  day  of  ,  in  the  year,  &c.,  ordered^ 

that  the  complainant,  within  (thirty)  days  after  service  upon  him 
or  his  solicitor  of  a  copy  of  this  order,  elect  whether  he  will 
proceed  at  law  in  the  suit  brought  by  him  against  the  defendants 
or  in  this  court  upon  his  bill ;  and  if  he  elects  to  proceed  at  law,^ 
or  if  he  neglects  to  file  such  election  within  the  said  (thirty)  days, 
the  bill  in  this  cause  shall  thereupon  stand  dismissed,  with 
costs  ;  and  if  he  elects  to  proceed  in  this  court,  it  is  then  further 
ordered  that  he  proceed  no  further  in  the  said  suit  at  law  with- 
out leave  of  this  court.(a) 


gress  of  which  they  obtain  judgment 
in  the  first  suit,  it  may  be  pleaded  in 
bar  to  the  action  brought  here.  Barnes 
V.  GihU,  2  Vr.  318.  The  complainant 
will  not  be  put  to  his  election  in  which 
court  he  will  proceed  until  after  the 
defendant  has  answered.  Conover\i 
Ey^rs  V.  Conover,  Sax.  409.  If  the  de- 
fendant's answer  is  not  excepted  to, 
or  set  down  for  hearing  on  former  ex- 
ceptions, he  may,  on  an  allegation 
that  the  complainant  is  prosecuting 
him  in  this  court,  and  also  at  law,  for 
the  same  matter,  obtain,  at  the  expira- 
tion of  eight  days  after  his  answer,  or 
further  answer  is  filed,  as  of  course,  on 
motion  or  petition,  the  usual  order  for 
the  complainant  to  make  his  election 
in  which  court  he  will  proceed.  Dan. 
Ch-  Pi:  816.  The  order  must  be  served 
on  the  complainant  or  his  solicitor  and 
attorney-at-law  ;  and  within  the  time 
limited  by  the  order,  the  complainant 
must  make  his  election  ;  and  if  he 
elect  to  proceed  in  equity,  then  his 
proceedings  at  law  are  thereby  stayed 
by  injunction  ;  but  if  he  elect  to  pro- 
ceed at  law,  or  in  default  of  his  mak- 
ing his  election  within  the  specified 
time,  then  his  bill  from  thenceforth 


stands  dismissed,  with  costs  to  the  de- 
fendant. Dan.  Ch.  Pr.  816.  The 
court  will  allow  the  party  a  reasonable 
time  to  make  his  election.  Bmcker  v. 
Martin,  3  Ycnjer  55 ;  Rogers  v.  Vos- 
burg,  4  Johns.  Ch.  84;  Ld.  Bacon's 
Orders,  No.  18. 

(a)  It  is  not  the  practice  in  Eng- 
land to  issue  an  injunction,  the  ser- 
vice of  the  order  being  sufficient. 
Braithwaite's  Pr.  229.  Where  the 
defendant  has  obtained  such  order 
on  suggestion,  the  plaintifl^may  move, 
on  notice  to  the  defendant,  to  dis- 
charge it,  either  for  irregularity  or 
upon  the  merits  confessed  in  the 
answer  or  proved  by  afiidavit.  If  upon 
such  motion,  there  should  be  any  doubt 
as  to  whether  the  suit  in  equity  and  the 
action  at  law  are  for  the  same  matter, 
it  is  the  usual  course  to  direct  an  in- 
quiry into  that  fact.  Mou.4ey  v.  Bas- 
netl,  IV.d-B  382,  n.  If  the  common 
order  cannot,  under  the  circumstances, 
(the  common  motion  cannot  be  made 
until  the  answer  has  been  put  in)  be- 
obtained,  it  seems  the  court  will,  if 
necessary,  make  a  special  order,  and 
grant  an  injunction  in  the  meantime. 
If  the  plaintiS"  requires  further  time- 


SUBSTITUTION    OF   SOLICITOR   AND    MASTER.  281 

Order  substituting  solicitor.(a) 
{Title  of  cause.) 

It  appearing  to  the  court  that  ,  the  solicitor  of  the 

complainant  in  the  above-stated  cause,  has  *  departed  this  life, 
(o?*,  stating  the  reason  for  the  order,  as  the  case  may  be:)  It  is, 
on  this,  etc.,  ordered,  that  be  substituted  as  solicitor  for 

the  complainant  in  the  place  and  stead  of  the  said 

Order  that  complainant  appoint  a  solicitor.(6) 

{Title  of  cause.) 

This  matter  being  opened,  &c.,  and  it  appearing  to  the  Chan- 
cellor, by  affidavit,  that  ,  the  solicitor  of  the  complainant 
in  the  above-stated  cause,  has  departed  this  life.  And  it  further 
appearing  that  no  solicitor  has  been  appointed  by  the  said  com- 
plainant in  his  stead :  It  is,  on  this,  &c.,  ordered,  that  the  com- 
plainant appoint  a  solicitor  to  conduct  this  cause  within 
days,  or  that  the  said  complainant's  bill  be  dismissed,  with  costs. 

to  make  liis  election,  lie  must  apply  Where  a  party  has  employed  a  solici- 
to  the  court  by  motion,  on  notice,  to  tor,  and  afterwards  desires  to  prose- 
have  the  time  extended.  After  decree,  cute  the  suit  in  person,  an  order  for 
it  is  not  the  practice  to  make  an  order  the  purpose  must  be  obtained.  Braith- 
to  elect.  Dan.  Ch.  Pr.  817.  waite  564.  But  where  a  party  sues  or 
(rt)  A  party  suing  or  defending  by  defends  in  person,  and  afterwards  ap- 
a  solicitor,  is  not  at  liberty  to  change  points  a  solicitor,  an  order  is  not 
his  solicitor  in  any  cause  or  matter,  necessary.  Id.  565.  The  dissolution 
without  an  order  of  the  court  for  the  of  partnership  of  a  firm  of  solicitors 
purpose;  until  such  order  is  obtained,  retained  by  a  client  to  prosecute  a 
the  former  solicitor  will  be  considered  suit,  operates  as  a  discharge  of  the 
the  solicitor  of  the  party.  1  Ban.  Ch.  client.  lb.;  Griffiths  v.  Griffith.-i,  2 
Pr.  454.  By  statute,  solicitors  in  chan-  Hare  588,  594. 

eery,   partners   in   their    business   as  (6)  When   any  solicitor   shall   die 

solicitors,  may,  in   their   partnership  or  remove  out  of  the  state,  or  be  put 

name,  appear  and  prosecute  or  defend  out  of  the  roll,  the  person  for  whom 

any  action.     Bev.,  "Practice,'"  ^   1.     It  he  was  solicitor  shall   be  warned   to 

will   be  presumed   that   the  solicitor  appoint  another  in  his  stead,  and  if  he 

who  filed  the  bill  had  full  authority  fail  to  do  so,  the  adverse  party  may 

to  commence  the  suit.     E.  &  A.  R.  B.  proceed  in  the  suit.     Bev.,  "Practice,"' 

Co.  V.  Greenwich,   10    C.  E.  Gr.  565.  I  6. 


282  FOBMS   OF   PLEADINGS. 

{In  case  the  complainant  resides  out  of  this  state,  and  his  residence 
is  unknovm,  add,  "And  it  is  further  ordered,  that  a  copy  of  this 
order  be  *  set  up  in  the  office  of  the  clerk  of  this  court,  and  so 
remain  for  days;  and  that  a  copy  thereof  be  also  mailed 

to  the  said  complainant  at  ,  his  last  known  place  of  resi- 

dence, within  days  from  the  date  hereof,"  or  after  *  say, 

"  served  on  the  said  complainant  within  days  from  the 

date  hereof.") 

Dismissal    of   bill    on    failure  of   complainant    to 
appoint  a  solicitor. 

(Title  of  cause.) 

It  appearing,  by  affidavit,  to  the  satisfaction  of  the  Chancellor, 
that  a  copy  of  the  order  made  in  this  cause,  bearing  date,  <S:c., 
whereby  it  was  ordered  that  the  complainant  do,  within 
days,  appoint  a  solicitor  to  conduct  this  suit,  in  the  place  of 
,  deceased,  who  was  the  complainant's  solicitor  in  this 
cause,  or  that  the  complainant's  bill  be  dismissed,  with  costs, 
was,  as  in  said  order  directed,  set  up  in  the  office  of  the  clerk  of 
this  court,  and  so  remained  there  for  days ;  and  also  that 

within  days  from  the  date  of  said  order,  a  copy  thereof 

was  deposited  in  the  post-office  at  ,  in  this  state,  postage 

prepaid,  directed  to  the  said  complainant  at  ,  being  his 

last  known  place  of  residence.  And  it  further  appearing,  that 
the  said  complainant  has  not  appointed  any  solicitor  to  conduct 
this  suit  in  place  of  the  said  ,  deceased :  It  is,  on  this, 

<fec.,  on  motion  of  ,  of  counsel  with  the  defendant,  ordered, 

adjudged  and  decreed,  that  the  complainant's  bill  in  this  cause 
be  and  the  same  is  hereby  dismissed,  with  costs  to  be  taxed. 

Order  substituting  master.(a) 

{Title  of  cause.) 

It  appearing  to  the  court  that  ,  one  of  the  masters  of 

this  court,  to  whom  certain  matters  in  the  above  cause  were 

(o)  After  a  cause  has  been  referred       from  that  master  without  an  order  of 
to  a  master,  it  cannot  be  withdrawn       the  court,  and  special   circumstances 


ADMISSION   OP   PARTIES.  283 

referred  by  a  decree  {or  "  an  order,")  made  on  the  day  of 

,  eighteen  hundred  and  ,  has  {state  the  reason  for 

the  substitution,)  and    that  no  report   has  been  made  by  him 
touching  the  matters  of  the  said  reference  :  It  is,  on  this 
day  of  ,  in   the  year  eighteen   hundred   and  ,  on 

motion  of  ,  solicitor  for  and  of  counsel  with  the  complain- 

ants, ("  and  in  the  presence  of  ,  solicitor  and  of  counsel 

with  the  defendants,)  ordered,  that  ,  one  of  the  masters  of 

this  court,  be  substituted  in  the  room  and    stead  of  the  said 
,  and  that  the  said  proceed  in   the  said  matters 

referred   as   aforesaid,  in   all    respects   as   the   said  was 

authorized  and  directed  to  do  by  the  aforesaid  decree  (or 
"  order,")  and  that  he  make  report  thereon  with  all  convenient 
speed. 

Petition  to  be  admitted  as  a  party  defendant  to 
,a  suit,  (a) 

{Title  of  cause  and  address.) 

The  petition  of,  &c.,  respectfully  shows,  that  on  the 
day  of  ,  &c.,  your  petit'.oner  became  the  purchaser  of  the 

mortgaged  premises  in  question  in  the  above- stated  cause,  at  a 

iinust  be  shown  to  authorize  a  chanffe  bill  to  make  such  person  a  party ;  but 

of   masters.     2   Dan.   Cli.   Pr.   1168.  the  same  may  be  done  by  petition 

No  sale  will  be  ordered  to  be  made  by  filed   in  the  cause;    which   petition, 

any  master  connected  in  business  with,  verified  by  oath,  shall  state  the  inter- 

or  who  is  clerk  for,  or  employed  in  est  of  such  person,  and  the  manner  in 

the  business  of,  the  solicitor  of  either  which  the  same  Avas  acquired  ;  and  a 

of  the  parties  to  the  suit.     Rule  46.  copy  of  the  petition  and  notice  of  the 

Testimony  shall  not  be  taken,  except  application   shall    be   served   on   the 

by  consent,  before  an  examiner  who  is  complainant  or  his  solicitor,  and  notice 

a  partner  of,  or  connected  in  business  of  the  application  shall  be  served  on 

with,   or  clerk    for,   the   solicitor   of  such  of  the  defendants  as  the  Chan- 

either  of  the  parties.     Rule  79.  cellor  shall  direct,  if  made  before  the 

{(i)  Where,  after  the  filing  of  the  time  for  answering  has  expired,  and 

bill,  any  person  shall  acquire  such  an  if  after  that  time,  on  each  defendant 

interest  in   the  subject-matter  of  the  who  has  answered  or  appeared  in  the 

suit  as  would  have  made  him  a  proper  cause ;  and  the  Chancellor  may,  there- 

or  necessary  party,  if  such  interest  had  upon,  if  it  appear  that  such  person  is 

been  possessed  by  him  at  the  time  of  entitled  to  be  made  a  party  to  the 

the  commencement  of  the  suit,  it  shall  cause,  and  has   acquired   his  interest 

not  be  necessary  to  file  a  supplemental  from  some  party  to  the  same,  order 


284  FORMS   OF   PLEADINGS. 

sale  thereof  made  by  the  sheriff  of,  &c.,  by  virtue  of  an  execu- 
tion issued  out  of  the  Supreme  Court  of  New  Jersey,  on  a  judg- 
ment recovered,  &c.,  {or  as  the  case  may  he,  stating  the  interest 
of  the  petitioner,  and  the  manner  in  which  such  interest  was 
acquired,)  as  by  the  deed  of  the  said  sheriff,  duly  executed  and 
delivered,  (a  copy  of  which  is  hereto  annexed,)  will  appear. 

And  your  petitioner  further  shows,  that  at  the  time  of  the 
purchase  of  said  premises  by  your  petitioner,  the  same  were 
subject  to  a  certain  mortgage,  executed  by  the  said  {the 

judgment  debtor)  to  ,  to  secure  the  payment  of  a  certain 

bond,  for  the  sum  of  dollars,  with  interest  thereon  from, 

&c.,  {state  the  condition  of  the  bond  shortly.) 

And  your  petitioner  further  shows,  that  on  or  about  the 
day  of  ,  &c.,  the  said  filed  his  bill  of  complaint  in 

this  court  against  said  ,  for  the  foreclosure  of  the  said 

mortgage,  and  *  that  no  final  decree  has  yet  been  made  in  said 
suit ;  {or  after  *,  "  an  execution  has  lately  issued  out  of  this 
court  for  the  sale  of  the  said  mortgaged  premises,  by  virtue  of 
the  final  decree  therein,  {or  state  the  condition  of  the  suit,  as  the 
case  may  be.) 

that  he  be  made  a  party  thereto ;  but  by  ;  and  in  all  cases  where  the  person 
such  person  shall  be  bound  by  all  so  made  a  party  does  not  dispute  the 
orders  and  proceedings  in  the  cause  claim  of  the  complainant,  or  any  part 
against  the  party  whose  interest  he  of  it,  the  complainant,  or  any  defend- 
has  acquired  ;  and  the  cause  shall  not  ant  whose  prior  right  is  not  disputed, 
be  delayed  by  the  admission  of  such  sliall  not  be  delayed  by  the  admission 
party,  except  for  such  time  as  it  may  of  such  party ;  but  his  claim  shall  be 
seem  to  the  Chancellor  to  be  necessary  fully  heard  and  investigated  in  dis- 
to  take  the  evidence  regarding  such  posing  of  the  residue  of  the  subject- 
claim.  Rev.,  "Chancery,''  §  41 ;  see  matter  of  the  suit,  or  of  the  proceeds 
Conrad  v.  MulUsan,  9  C.  E.  Gr.  65.  thereof.  Rev.,  "Chancery,"  \  42. 
See  as  to  manner  of  service  in  case  After  a  decree  ]>ro  confesso  and  sale  of 
party  entitled  to  notice  be  dead,  rule  the  premises  under  a  foreclosure,  the 
142.  In  all  case*  in  which  it  is  pro-  purchaser  was  admitted  as  a  party 
vided  in  the  foregoing  section  that  a  defendant,  but  not  to  file  an  answer ; 
person  may  be  made  a  party  by  peti-  and  it  was  held  that  he  might  avail 
tion  after  the  commencement  of  the  himself  of  any  defence  the  mortgagor 
suit,  such  person  may  be  made  a  party  could  have  set  up  after  a  decree. 
.  either  before  or  after  interlocutory  or  Hewitt  v.  Montclair  Ry  Co.,  10  C  E. 
final  decree  therein,  but  such  decree  Gr.  100;  ^ee  also  S.  C,  12  C.  E.  Gr. 
shall  not  be  opened  or  set  aside  there-  479. 


ADMISSION   OF   PARTIES.  285 

Your  petitioner  is  advised  and  believes,  that  the  proceeds  of 
said  sale  will  be  much  more  than  sufficient  to  satisfy  said  mort- 
gage debt ;  and  also  that  the  whole  principal  sum,  with  interest 
thereon,  as  alleged  in  said  bill,  is  not  due  to  the  said  complain- 
ant on  his  mortgage,  {or  state  the  reason  of  the  application,  as 
the  case  may  be.) 

Your  petitioner  therefore  prays  that  he  may  be  admitted  as 
a  party  defendant  to  said  suit  for  foreclosure,  and  allowed  to 
answer  said  bill  of  complaint  as  he  may  be  advised,  or  as  may 
be  necessary  and  proper  to  protect  his  interests  as  the  purchaser 
and  owner  of  said  mortgaged  premises. 

{Signature  of  solicitor  and  counsel.) 

{Annex  affidavit  of  verification  and  copy  of  instrument  upon 
which  his  interest  depends.) 

Notice  of  application  on  foregoing  petition. 

{Title  of  cause.) 
As  in  form,  on  page  148  to  **,  then,  "  be  admitted  as  a 

party  defendant  in  the  above-stated  cause,  and  for  such  other  or 
further  relief  as  may  be  proper." 

Order  admitting  petitioner  as  a  party.(a) 

{Title  of  cause.) 
A  motion  having  been  made  before  the  Chancellor,  on  the 
petition  of  ,  praying  that  he  be  made  a  party  defendant  in 

(«)  In  any  suit  for  the  foreclosure  shall  be  bound  by  the  proceedings  in 

of  a  mortgage  upon,  or  which   may  such  suit,  so  far  as  the  said  property  is 

relate  to,  real  or  personal  property  in  concerned,  in  the  same  manner  as  if 

this   state,   all   persons   claiming    an  he   had   been  made   a  party  to,  and 

interest   in,  or   encumbrance  or  lien  appeared  in,  such  suit,  and  the  decree 

upon,  such   property,  by  or  through  therein   made  against  him  as  one  of 

any    conveyance,    mortgage,    assign-  the  defendants  therein  ;  but  such  per- 

ment,  lien  or  any  instrument  which,  son,  upon   causing  such  conveyance, 

by   any   provision   of  law,   could  be  mortgage,   assignment,  lien-claim   or 

recorded,  registered,  entered  or  filed  other  instrument  to  be  recorded,  regis- 

in   any   public    office    in   this    state,  tered,  entered  or  filed,  as  provided  by 

and  which  shall  not  be  so  recorded,  law,  may  cause  himself  to  be  made  a 

registered,  entered  or  filed  at  the  time  party  to  such  suit  by  petition,  in  the 

of  the  filing  of  the  bill  in  such  suit,  same  manner  as  is  provided  in  the 


286  FORMS  OF   PLEADINGS. 

the  above-stated  cause,  and  the  matters  having  been  debated  by 
the  counsel  of  the  petitioner  and  the  counsel  of  the  complainant, 
and  the  Chancellor  having  considered  of  said  matter,  and  being 
of  opinion  that  the  said  petitioner  is  a  proper  party  defendant 
to  this  cause :  It  is,  on  this,  &c.,  ordered,  that  the  said 
be  admitted  as  a  party  defendant  in  this  cause,  and  that  *  he 
have  days  from  the  date  of  this  order  to  file  his  answer 

to  the  bill  of  complaint  herein ;  (or  after  *,  "  he  have  leave  to 
appear  before  the  master  to  whom  it  has  been  referred,  to  ascer- 
tain and  report  as  to  the  claims  of  the  different  parties  to  this 
suit,  and  their  priorities,  and  to  prove  his  claim  on  or  to,  or 
interest  in  the  mortgaged  premises,"  or,  "  he  have  the  right  to 
appear  before  the  master  on  the  reference  in  this  cause,  and  that 
notice  be  given  him  of  the  proceedings  before  said  master.") 


INJUNCTION.(a) 

Common  order  for  injunction. 

{Title  of  cause.) 
Upon  reading  the  bill  of  complaint  in  this  cause,  and  the 
affidavit  thereto  annexed,  and  on  motion  of  ,  of  counsel 

case  of  persons  acquiring  an  interest  that  the  complainant  held  the  instru- 
in  the  subject-matter  of  a  suit  after  its  ment,  and  refused  to  deliver  posses- 
commencement  ;  the  petitioner  in  such  sion  of  it.  KirtlancVs  Adm'x  v.  Kirt- 
case  must  set  forth  the  instrument  at  land,  11  C.  E.  Gr.  276.  Where  a  lien- 
length,  and  the  title  and  interest  of  claim  was  filed  after  the  commence- 
such  party,  in  such  a  manner  as  to  ment  of  a  suit  in  the  Court  of  Chan- 
show  that  he  has  an  interest  in  the  eery  to  foreclose  a  mortgage,  which 
subject-matter,  and  is  a  proper  party  was  on  the  lands  before  the  work  was 
in  the  suit.  Rev.,  "  Chancery,"  §  78.  done  or  materials  provided  for  which 
Where  the  applicant  fully  stated  in  the  lien  was  claimed,  and  the  lien- 
his  petition  his  title  and  interest,  and  claimants  were  not  made  parties,  and 
whence  and  in  what  manner  derived,  did  not  apply  to  be  made  parties,  the 
it  was  held  that  he  could  not  be  de-  claim  was  held  to  be  cut  off  by  sale 
prived  of  his  right  to  be  admitted  a  under  foreclosure.  Haymond  v.  Post, 
party  to  the  suit,  because  he  did  not  10  C.  E.  Gr.  447. 
set  out  at  length  the  instrument  under  («)  An  injunction  may  be  obtained 
which  he  claimed;   it  being   alleged  at  any  time,  in  vacation  as  well  as  in 


INJUNCTION. 


287 


with  the  complainant :  It  is,  on  this,  etc.,  ordered,  that  *  upon 
filing  the  said  bill  and  affidavits,  ("  and  a  bond  according  to  the 
one  hundred  and  twenty-seventh  rule  of  this  court,")  an  injunction 


term.  The  court  is  always  open  for 
granting  injunctions.  Mei:,  "  Chan- 
cery," I  3.  It  is  a  law  of  tlie  court, 
and  dictate  of  sound  reason,  that  when 
a  party  desires  extraordinary  aid,  he 
must  be  prompt  in  his  application. 
Scuddcr  v.  Falln  Co.,  Sdx.  695.  Espe- 
cially when  the  party  is  seeking  the 
injunction  against  an  important  public 
work.  Scanldu  v.  ITowc,  9  C.  E.  Gr. 
273 ;  EaMon  v.  Railroad  Co.,  Id.  50. 
The  distinction  in  the  English  books 
between  a  common  injunction  which 
issues  on  some  default  of  the  defend- 
ant, and  special  injunctions  granted 
on  special  applications  to  the  court,  is 
of  no  importance.  All  injunctions 
here  against  individuals,  applied  for 
before  answer,  are  granted  on  the 
merits,  and  on  special  application  to 
the  court,  ex  parte,  on  filing  the  bill. 
Buckley  v.  Corse,  Sax.  -504;  rides  121, 
127.  Though  the  operations  of  large 
companies  ought  not  to  be  arrested 
without  notice,  yet  it  is  a  matter  rest- 
ing in  the  sound  discretion  of  the 
court.  Perkins  v.  Collins,  2  Gr.  Ch. 
482;  rule  120.  When  public  interests, 
or  the  rights  of  large  classes  are  in- 
volved, an  injunction  will  not  be 
granted,  except  upon  hearing  and 
notice,  and  then  only  when  it  clearly 
appears  that  the  injunction  will  not 
prejudice  a  public  or  quasi  public 
interest.  Society,  &c.,  v.  Butler,  1  Beas. 
499  ;  Sugar  Refining  Co.  v.  Jersey  City, 
•1)  C.  E.  Gr.  247.  No  injunction  shall 
be  allowed  against  an  incorporated 
company  or  against  any  individual, 
the  effect  of  which  is  to  stay  the  pro- 
gress of  any  public  work  authorized 
by  a  law  of  this  state,  without  an  order 
first  made  to  show  cause,  as  provided 


in  rule  122;  and  this  rule  shall  not 
be  dispensed  with  in  any  case,  except 
by  the  order  of  the  Chancellor  first 
obtained  and  filed,  unless  such  injunc- 
tion be  granted  by  the  Chancellor 
himself.  Rule  120.  To  entitle  the 
complainant  to  an  injunction,  he  must 
show,  not  only  that  the  act  of  which 
he  complains  is  illegal,  but  that  his 
rights  are  prejudiced  or  injured  by  it. 
Miller  v.  Craig,  3  Stock.  176.  The 
granting  and  continuing  of  injunctions 
rests  mainly  on  equitable  grounds,  and 
is  not  exercised  for  the  mere  purpose 
of  protecting  legal  rights,  irrespective 
of  the  claim  of  the  party  to  equitable 
relief.  Hilles  v.  Parish,  1  McCart.  380. 
An  application  for  an  injunction  must 
(except  in  interpleader)  be  supported 
by  affidavits  of  merits,  or  the  admis- 
sions of  the  defendant  in  his  answer. 
See  Younghlood  v.  Sehamp,  2  McCart. 
42.  An  application  for  injunction  in 
interpleader  need  not  be  supported  by 
an  affidavit  of  merits;  but  the  money 
or  other  property  in  dispute  must  be 
secured  by  payment  into  court ;  though 
if  there  be  not  time  to  bring  the 
money  into  court,  the  court  will  pro- 
vide for  the  emergency.  The  injunc- 
tion should  be  so  framed,  if  there  be 
occasion  so  to  do,  as  not  to  deprive 
the  defendants  of  any  legal  rights 
they  may  have  acquired.  Hamilton 
V.  Marks,  5  Be  G.  &  S.  638  ;  Sieveking 
v.  Behrcns,  2  3Iyl.  &  C.  581.  The 
affidavits  in  support  of  an  application 
for  an  injunction  are  usually  made  by 
the  complainant;  but  they  may  be 
made  by  any  person  acquainted  with 
the  fiicts.  See  rule  119.  In  New  Jersey, 
they  are  ordinarily  made  before  the 
bill  is  filed,  and  are  annexed  to,  and 


288 


FORMS   OF   PLEADINGS. 


do  issue,  t  according  to  the  prayer  of  said  bill ;  {or  if  the  ivjunc- 
tion  be  special,  after  f  add,  "  restraining  the  defendants,"  reciting 
the  terms  of  the  injunction,  as  the  case  may  be.)  (If  it  be  neces- 
sary to  make  personal  service  on  a  defendant  out  of  the  jurisdic- 
tion, add,  "And  it  is  further  ordered,  that  said  injunction  may 
be  served  upon  the  said  defendant,  ,  out  of  this  state.")(a) 

Notice  of  motion  for  injunction. (6) 
(Title  of  eav^e.) 

As  in  form  on  page  148  to  *,  then,  "for  an  injunction  to 
restrain  the  defendant,  his  agents,  &c.,  from  (state  the  acts  to  be 
enjoined,)  and  for  such  other  or  further  relief  as  may  be  just.'' 


filed  with,  the  bill.  Ex  parte  affi- 
davits made  after  the  bill  is  filed  will 
not  be  read  in  support  of  the  applica- 
tion. Brundred  v.  Paterson  Machine 
Co.,  3  Gr.  Ch.  294. 

Affidavits  of  the  complainants,  made 
after  the  filing  of  the  bill,  were  not 
permitted  to  be  read  upon  a  motion 
for  an  injunction  and  receiver  against 
a  corporation  alleged  to  be  insolvent, 
the  court  saying  that  the  complainants 
had  an  opportunity  when  the  bill  was 
filed  of  subjoining  their  affidavits  and 
filing  them  with  the  bill,  and  that  they 
ought  to  have  done  so.  Brundred  v. 
Paterson  Machine  Co.,  3  Gr.  Ch.  309. 
When  an  injunction  is  applied  for, 
there  should  be  a  special  affidavit  of 
the  truth  of  all  the  material  facts  upon 
which  the  application  is  founded.  An 
injunction  issued  upon  the  common 
affidavit,  in  the  form  ordinarily  an- 
nexed to  an  answer,  will  be  dissolved 
very  much  as  a  matter  of  course. 
Youwjblood  V.  Schamp,  2  McCart.  42. 
There  is  no  relaxation  of  the  rules  of 
evidence,  with  respect  to  affidavits  an- 
nexed to  injunction-bills.  C.  &  A.  R. 
B.  Co.  v.  Stewart,  6  C.  E.  Gr.  484.  If 
an  injunction  is  allowed  upon  an  in- 
sufficient affidavit,  it  is  not  merely  an 


irregularity,  but  an  error  to  which  the 
principle  of  waiver  does  not  apply. 
Perkins  v.  Collins,  2  Gr.  Ch.  483 .  The 
facts  upon  which  injunction  depends, 
must  be  verified  by  positive  proof, 
annexed  to  the  bill,  or  the  injunction 
will  be  dissolved,  even  if  the  denial 
in  the  answer  is  not  sufficient,  for  want 
of  personal  knowledge  by  the  defend- 
ant. Holdreye  v.  Gwynne,  3  C.  E  Gr. 
27.  The  evidence  must  also  prove 
some  actual  violation  of  the  complain- 
ant's right,  or  a  sufficient  ground  to 
apprehend  it.  2  Ban.  Ch.  Pr.  1670. 
As  a  general  rule,  a  preliminary  in- 
junction will  not  be  granted,  unless 
the  act  threatened  to  be  done  will  in- 
flict an  irreparable  injury  on  the  com- 
plainant. Citizens'  Coach  Co.  v.  Camden 
Co.,  2  Stew.  Eq.  299. 

(o)  When  the  defendants  reside  out 
of  the  state,  and  cannot  be  found,  it 
is  the  practice  for  the  court,  by  special 
order,  to  dispense  with  personal  ser- 
vice. Harincj  v.  Kauffman,  2  Beas. 
397. 

The  court  sometimes  orders  service 
to  be  made  on  the  defendant  out  of  the 
state. 

(6)  If  the  application  for  an  injunc- 
tion is  not  made  ex  parte,  a  notice  of 


INJUNCTION. 


289 


Order  to  show  cause  why  an  injunction  should 
not  issue,  with  restraint  in  the  meantime.(^i) 

{Title  of  cause.) 

As  in  form  on  page  286  to  *,  then,  "the  defendants  show 
cause  before  the  Chancellor,  at  the  state-house,  in  Trenton,  {or, 


motion  must  be  served  in  the  usual 
manner.  It  must  state  the  day  on 
which  the  notice  is  to  be  made,  which, 
except  in  causes  referred  to  a  Vice 
Chanc^ellor,  must  be  one  of  the  days 
appointed  for  motions,  unless  special 
leave  has  been  obtained  to  give  the 
notice  of  motion  for  another  day ;  and 
the  fact  of  such  special  direction  hav- 
ing been  made,  must  be  expressed  in 
the  notice.  Bale  5.  Whether  notice  of 
an  application  for  an  injunction  shall 
be  given,  depends  on  no  settled  prac- 
tice, but  on  the  nature  of  each  case. 
Buckley  v.  Corse,  Sax.  504.  A  motion 
cannot  be  made  on  behalf  of  the 
relators  in  an  information;  it  must 
be  made  on  behalf  of  the  attorney- 
general.  Aify-Gen.y.  Wright,  3  Beav. 
447.  No  injunction  can  issue  after 
answer  filed,  without  giving  five  days' 
notice  of  the  application  therefor, 
unless  it  shall  be  made  to  appear  to 
the  Chancellor,  Vice  Chancellor  or 
master  that  the  circumstances  of  the 
case  are  such  as  to  make  it  proper 
to  dispense  with  notice.  Rule  128. 
Where  the  application  for  an  in- 
junction was  of  a  special  character, 
and  one  not  of  ordinary  occurrence, 
it  was  directed  that  a  copy  of  the 
bill  be  served  on  the  defendant,  and 
notice  given  of  an  application  at  a 
future  day.  Hardenhurgh  v.  Farmers^ 
Bank,  2  Gr.  Ch.  73.  It  is  the  practice 
in  New  Jersey,  upon  application  for 
injunction,  where  notice  is  given,  and 
the  parties  are  heard  upon  the  appli- 


cation before  answer,  to  permit  the 
defendant  to  read  on  the  hearing 
affidavits  taken  ex  parte  and  without 
notice,  touching  matters  stated  in  the 
bill.  Ibid.  Injunction  was  refused 
while  a  plea  or  demurrer  was  pending, 
on  the  ground  that  until  the  plea  or 
demurrer  was  argued  it  does  not  ap- 
pear the  court  has  cognizance  of  the 
cause.  3  P.  Wrm.  396 ;  see  Hinde  Pr. 
578. 

(a)  If  the  Chancellor  thinks  the 
defendants,  or  any  of  them,  should  be 
heard  on  the  question  before  the 
injunction  is  granted,  he  will  refuse 
to  allow  it  ex  parte,  and  either  direct 
that  notice  be  given,  or  make  an  order 
requiring  the  defendant  to  show  cause 
before  the  court,  on  a  regular  motion- 
day,  or  on  a  particular  day  to  be 
appointed  in  the  order,  why  the  in- 
junction should  not  be  granted.  He 
will  in  such  case  also  direct  on  which 
of  the  defendants  the  bill  and  affidavits 
and  notice  or  order  to  show  cause  shall 
be  served,  and  the  time  and  manner 
of  such  service.  Unless  such  order 
shall  otherwise  direct,  it  will  be  the 
duty  of  the  complainant  to  serve 
the  order  to  show  cause  on  the  de- 
fendant, together  with  a  copy  of  the 
bill  and  affidavits  annexed,  at  least 
six  days  previous  to  the  day  fixed 
for  the  hearing.  On  the  hearing, 
the  defendant  may  read  his  answer 
to  the  bill,  and  also  affidavits  in  reply 
to  affidavits  annexed  to  the  bill, 
but   no  other   affidavits  can  be   read 


290  FORMS   OF   PLEADINGS. 

*■  at  the  chancery  chambers,  in  /)  on  the  day  of 

next,  at  ten  o'clock  in  the  forenoon,  or  as  soon  thereafter  as 
counsel  can  be  heard,  why  an  injunction  should  not  issue  ** 
according  to  the  prayer  of  the  said  bill,  (or  ajier  **,  '  restraining 
them  from,'  date  the  acts  to  be  evjoined,)  and  for  such  further 
relief  as  may  be  just." 

And  it  is  further  ordered,  that  the  said  defendants,  their 
agents,  &c.,  in  the  meantime,  and  until  the  further  order  of  this 
court  in  the  premises,  desist  and  refrain  from  (state  the  acts 
enjoined. ){a) 

And  it  is  further  ordered,  that  a  copy  of  the  "  said  bill  and 
affidavits  "  (or,  "  of  this  order  ")  be  served  on  the  said  defend- 
ants, respectively,  within  days  from  the  date  of  this  order. 

Order  denying  motion  for  injunction. (6) 

{Title  of  cause.) 

Upon  reading  the  bill  of  complaint  in  this  cause,  and  the 
affidavits  thereto  annexed,  and  on  hearing  ,  of  counsel 

on    either    side,    unless,    foi-    special  Where  there  is  an  order  to  show 

reasons,  the   Chancellor,  on  applica-  cause,  there  need  be  no  subpoena  to 

tion,  at  the  time   appointed  for  the  bring  defendant   into   court,   but    he 

application,  shall,  by  order,  otherwise  need  not  file  an  answer  until  required 

direct ;  and  where  further    affidavits  to  do  so  by  subpoena,  nor  is  he  obliged 

are  taken,  under  an  order  for  the  pur-  to  serve  his  answer  on  the  complain- 

pose,  they  shall  be  taken  on  two  days'  ant  before  the  hearing  on  the  order 

notice  to  the  opposite  party.    See  Mule  to   show   cause.     Dean  v.  Bonnell,  4 

122.     The   answer  of  a  corporation,  N.  J.  L.  J.  348,  Dodd,  V.   C.     The 

under  its  corporate  seal,   is  not   evi-  regular  course  for  showing  cause  is  by 

dence  on  the  hearing  of  the  order  to  affidavits  taken  on  two  days'  notice, 

show  cause,  and  is  of  no  consequence,  or  taken   ex  parte,  and  served   four 

except  in  explanation  of  the  njeaning  days    before   the    day   of    argument, 

of  the  affidavits.     Citizens'  Coach  Co.  P.  &  R.  R.  Co.  v.  Little,  14  Stew.  Eq. 

V.  Camden  H.  R.  Co.,  2  Stew.  Eq.  299.  519.     See  Rule  138. 

(a)    Where   an   order    merely   re-  (6)  In  all  cases  where  an  applica- 

strains  a  party  from  doing  a  certain  tion  is  made  for  an  injunction  to  the 

act,  and  does  not  award  an  injunction,  Chancellor  or  to  a  Vice   Chancellor 

a  writ  of  injunction   does   not  issue.  or  master,  and   the  same   is   denied, 

The  order  is  termed  a  "  restraining  an  endorsement  of  the  denial  shall  be 

order,"  and  a  copy  of  the  order  itself  made  on  the  bill  or  petition,  and  the 

should  be  served.     Braithwaite' s  Pr.  said  bill  or  petition  shall  be  put  on 

229.  the  files  of  the  court.    Rule  129.    The 


INJUNCTION. 


291 


with  the  complainant:  It  is,  on  this,  &c.,  ordered,  that  the 
motion  on  behalf  of  the  said  complainant  for  an  injunction,  be 
and  the  same  is  hereby  denied,  "  without  prejudice  to  the  com- 
plainant's right  to  renew  it  upon  the  same  or  other  papers." 
And  it  is  further  ordered,  that  the  said  bill  and  affidavits  be 
filed  with  the  clerk  of  this  court. 


Preliminary  injunction. 

New  Jersey  to  and 

agents,  and  each  and  every  of 
agents,")(a) — Greeting  : 

taill  must  be  filed,  whether  the  injunc- 
tion is  made  use  of  or  not.  Stimson 
V.  Bacon,  1  Stock.  144.  An  injunction 
should  not  be  granted  on  a  bill  which 
is  bad  upon  demurrer,  even  in  point 
of  form  merely.  -Rose  v.  Hose,  11 
Paige  166. 

{a)  If  the  object  of  the  suit  is  to 
restrain  proceedings  in  another  court, 
the  injunction  will  be  awarded  against 
the  defendant,  his  attorneys  and  agents. 
If  it  is  to  restrain  waste,  or  any  other 
inequitable  act,  it  is  awarded  against 
the  defendant,  his  servants,  workmen 
and  agents.  2  Dan.  Ch.  Pr.  1673.  A 
writ  of  injunction  ought  to  be  suffi- 
ciently explicit  upon  its  face  to  apprise 
the  party  upon  whom  it  is  served  as 
to  what  he  is  restrained  from  doing, 
without  the  necessity  of  his  resorting 
to  the  complainant's  bill  to  ascertain 
what  the.injunction  means.  Bichards 
V.  West,  2  Gr.  Ch.  456 ;  McKillop  v. 
Taylor,  10  C.  E.  Gr.  139.  It  should 
not  deprive  the  defendant  of  any  right 
which  the  case  made  by  the  bill  does 
not  require  he  should  be  restrained 
from  exercising.  Laurie  v.  Laurie, 
Q  Paige  234.  To  effect  a  regular  ser- 
vice of  an  injunction,  the  writ  itself, 


New  Jersey,  ss. — The  State  of 

,  their  servants,  workmen  and 

them,  {or,  "  their  attorneys  and 


under  the  seal  of  the  court,  must  be 
shown  to  the  party  against  whom  it 
issues,  and  a  true  copy  thereof  de- 
livered to  him.  Haring  v.  Kaufman, 
2  Peas.  397.  The  copy  should  be  a 
full  copy,  including  the  signature  of 
the  clerk,  and  should  be  endorsed  in 
like  manner  as  the  original.  Braith- 
waite's  Pr.  228.  The  writ  must  be 
issued  within  five  days  from  the  date 
of  the  order  or  fiat  therefor,  and 
served  within  twenty  days  after  the 
issuing  thereof;  and  within  ten  days 
after  service  a  return  of  such  service 
made  to  the  court,  and  on  failure 
thereof,  the  defendant  will  be  entitled 
to  a  dissolution  of  the  injunction,  un- 
less the  Chancellor  shall,  by  order, 
give  further  time  for  its  service  and 
return.  Bale  130.  A  subpoena  must 
be  taken  out  with  an  injunction,  and 
made  returnable  within  the  time  pre- 
scribed by  the  rule  for  the  return  of 
service  of  the  injunction.  Lee  v. 
Cargill,  2  Stock.  331.  A  court  of 
equity  will  punish  the  violation  of  its 
order  for  an  injunction,  though  the 
writ  be  not  served,  if  the  defendant 
knew  of  its  existence.  Chambers  v. 
Divyer,  12  Vr.  95. 


292  FORMS   OF   PLEADINGS. 

Whereas,  it  has  been  represented  to  us,  in  our  Court  of  Chan- 
cery, on  the  part  of  ,  complainant,  that  he  has 
[l.  s.]  lately  exhibited  his  bill  of  complaint  against  you,  the 
said  and  ,  defendants,  to  be  relieved 
touching  the  matters  therein  contained,  and  that  your  actings 
and  doings  in  the  premises  are  contrary  to  equity  and  good 
conscience :  We,  therefore,  in  consideration  thereof,  and  of  the 
particular  matters  in  the  said  bill  set  forth,  do  strictly  erjoiu 
and  command  you,  the  said  ,  your  workmen,  laborers, 
servants  and  agents,  and  each  and  every  of  you,  (or  as  the  case 
may  be,)  under  the  penalty  that  may  fall  thereon,  that  you,  and 
each  and  every  of  you,  do  absolutely  desist  and  refrain  from 
{insert  the  matter  prohibited  to  be  done,)  until  you,  the  said  , 
shall  have  fully  answered  the  bill  of  complaint,  and  our  said 
court  shall  make  other  order  to  the  contrary. 

Witness  ,  our  Chancellor,  at  Trenton,  the  <iay  of 

,  &c.  {Signature  of  clerk.) 

[Signature  of  solicitor.) 

Injunction   to    stay    proceedings    at    law.(^)    New 
Jersey,  to  wit — The  State  of  New  Jersey  to  ,  his  coun- 

selors, attorneys,  solicitors  and   agents,  and  each  and  every  of 
them — Greeting : 

(a)  Wherever   a   party,   by   fraud,  by  affidavit  certified  at  tlie  foot  or  on 

accident,  mistake  or  otherwise,  has  ob-  the  back  of  the  bill  that  the  allega- 

tained  an  advantage  in  proceedings  in  tions   thereof  are   true,  or  by   other 

a  court  of  ordinary  jurisdiction,  which  means.      Mev.,     '^Chancery,"     §     84. 

must  necessarily  make  that  court  an  Whenever  a  cause  shall  be  at  issue  in 

instrument  of    injustice,   a    court   of  any  court  of  common  law,  no  injunc- 

equity  will    interfere    to    prevent    a  tion  shall  issue  before  answer  filed  to 

manifest   wrong,   by   restraining    the  stay  the  trial  of  the  cause,  unless  ap- 

party  whose  conscience  is  thus  bound,  plied  for  and  actually  taken  out  twenty 

from  using  the  advantage  he  has  there  days   previous   to   the  sitting  of  the 

gained.     2  Dan.   Ch.  Pr.  1623.     No  court  in  the  county  in  which  the  trial 

person  can  enjoin  a  judgment  at  law,  is   to   be    had,   except   some    special 

to  which  he  is  not  a  party.    Jordan  v.  cause  shall  be  shown  by  affidavit  to 

Williams,  3  Rand.  501.     No  injunc-  the  Chancellor,  or  to  a  Vice  Chancel- 

tion  shall  be  granted  to  stay  proceed-  lor,  or  to  the  master  authorized  to  re- 

ings  in  any  suit  at  law  before  verdict  port  upon  the  propriety  of  issuing  the 

or  judgment,  unless  the  Chancellor  be  injunction  prayed  for,  and  it  shall  be 

satisfied  of  the  complainant's  equity,  made  to  appear  that  the  injunction  is 


INJUNCTION.  293 

Whereas,  it  has  been  represented  to  our  Chancellor,  in  our 
Court  of  Chancery,  on  the  part  of  ,  complainant, 

[l.  8.]     that  he  has  lately  exhibited  his  bill  of  complaint  against 
you,  the   said  ,  and    others,  defendants,   to   be 

relieved  touching  the  matters  therein  contained,  and  that  the 
actings  and  doings  of  you,  the  said  defendant,  are  contrary 
to  equity  and  good  conscience :  We,  therefore,  in  consideration 
of  the  premises,  and  of  the  particular  matters  set  forth  in 
the  said  bill,  do  strictly  enjoin  and  command  you,  the  said 
,  and  all  and  every  the  persons  before  mentioned,  and 
each  and  every  of  you,  under  the  penalty  that  may  fall  thereon, 
that  you,  and  every  of  you,  do  absolutely  desist  and  refrain  from 
all  further  proceedings  at  law  against  the  said  ,  in  a  suit 

commenced  by  you,  the  said  ,  in  our  Supreme  Court,  on 

a  certain  bond  executed  by  the  said  complaioant,  on  the 
day  of  ,  ia  the  year,  &c. ;  and  which  said  action  you, 

the  said  defendant,  threaten,  as  is  alleged  in  the  said  bill,  to 
notice  and  bring  to  trial  at  the  next  Circuit  Court  to  be  held  in 
au(i  for  the  county  of  ,  until  you,  the  said  defendant,  shall 

have  fully  answered  the  bill  of  complaint,  and  our  said  court 
shall  make  other  order  to  the  contrary. 
Witness,  &c. 

Injunction  to  stay  waste. (a)     New  Jersey,  to  wit— The 
State  of  New  Jersey  to  and  ,  his  wife,  and 

and  ,  their  workmen,  servants  and  agents,  and  each  and 

every  of  them — Greeting: 

applied  for  within  a  reasonable  time  was  noticed,  which  have  accrued  up 
after  the  complainant  became  ap-  to  the  time  of  the  service  of  the  in- 
prised  of  the  circumstances  on  which  junction.  Rule  125. 
his  application  is  founded  ;  and  when-  (a)  A  charge  of  waste,  whereby 
ever  an  injunction  shall  be  granted  to  the  mortgage  security  is  diminished, 
stay  proceedings  at  law  within  twenty  is  always  a  sufficient  ground  for  an 
days  previous  to  the  silting  of  the  injunction  as  between  mortgagor  and 
court  as  aforesaid,  it  shall  be  upon  con-  mortgagee.  Capner  v.  Fleminyton  Co., 
-dition  that  the  party  pay  the  costs  at  1  Gr.  Ch.  467  ;  Allen  v.  Taylor,  Id. 
Jaw  of  the  term  at  which  the  cause  435. 


294  FORMS   OF   PLEADINGS. 

Whereas,  it  has  been  represented  to  us,  in  our  Court  of  Chan- 
cery, on  the  part  of  ,  complainant,  that  he  has 
[l.  s.]  lately  exhibited  his  bill  of  complaint  against  you,  the 
said  ,  and  wife,  and  ,  defendants,  to 
be  relieved  touching  the  matters  therein  contained,  in  which  said 
bill  it  is,  among  other  matters,  set  forth,  that  you,  the  said  , 
do  threaten  and  intend  to  cut  down  timber  and  other  trees,  and 
to  commit  other  waste  and  injury  on  certain  mortgaged  premises 
mentioned  in  the  complainant's  bill,  and  situate  in  the  township 
of  *j  in  the  county  of  ,  containing  acres,  more 
or  less,  and  being  [here  insert  brief  statement  of  description,  so  far 
as  to  identify  the  premises,  but  no  more^  and  that  the  actings  and 
doings  of  you,  the  said  defendants,  touching  the  matters  in  the 
said  bill  mentioned,  are  contrary  to  equity  and  good  conscience: 
We,  therefore,  in  consideration  of  the  premises,  do  strictly  enjoin 
and  command  you,  the  said  ,  and  ,  and  , 
your  workmen,  servants  and  agents,  and  each  and  every  of  you, 
that  under  the  penalty  that  may  fall  thereon,  you,  and  each  and 
every  of  you,  do,  from  henceforth,  altogether  and  absolutely 
desist  and  refrain  from  cutting  down  or  destroying  the  timber 
or  other  trees  standing,  growing  or  being  in  or  upon  the  said 
mortgaged  premises  before  mentioned,  or  any  part  thereof,  and 
from  taking  and  carrying  away,  or  causing  to  be  taken  and 
carried  away,  any  wood  lying  or  being  upon  the  said  premises^ 
or  any  part  thereof,  cut  therefrom,(a)  and  from  committing  or 
doing  any  further  or  other  waste  or  spoil  in  or  upon  the  said 
premises,  or  any  part  thereof,  or  in  or  upon  any  of  the  lands  in 
question  in  the  said  cause,  until  our  said  court  shall  make  other 
order  to  the  contrary. 
Witness,  &c. 

(a)  An  injunction  may  be  granted  permitted,  or   where  there   is   fraud, 

at  the  suit  of  a  mortgagee  to  prevent  Bank  of  Chenango  v.  Cox,  11  C.  E.  Gr. 

the  removal  from  the  mortgaged  prem-  452.      But    where    the    bill    alleges 

ises  of  timber  trees  cut  down  in  waste  neither   of  such   considerations,   and 

of    the   security,   where    the    person  prays  an  account  from  the  person  who 

against  whom  relief  must  be  sought  has  committed  the  waste,  an  injunc- 

for  the  waste  committed  is  insolvent,  tion  will  not  be  granted.     Ibid.     For 

or  where  no  redress  can  be  obtained  punishment  of  breach  of  injunction  to 

at  law  or  in  equity,  if  the  removal  be  stay  waste,  see  Rev.,  "Chancery,"  §  87, 


INJUNCTION.  295 

Perpetual  injunction  after  decree.(a)  New  Jersey,  to 
wit — The  State  of  New  Jersey  to  and  ,  their  agents, 

&c. — Greeting: 

Whereas,  by   a  certain  final  decree  made  in  our  Court  of 
Chancery  of  New  Jersey,  on  the  day  of 

[l.  s.]  {the  date  of  the  decree),  in  a  certain  cause  therein  depend- 
ing, wherein  is  complainant,  and  the  said 
are  defendants,  it  was  ("amongst  other  things" — if  the  decree 
applies  to  other  things  besides  the  injunction,  so  much  only  of  the 
mandatory  part  of  the  decree  as  relates  to  the  injunction  need  be 
recited,  prefixing,  however,  the  words  "it  was,  amongst  other 
things,"  &c.,  or,  "our  said  court  did,  amongst  other  things," 
&c.) — ordered,  adjudged  and  decreed,  that  [recite,  in  the  past 
tense,  so  much  of  the  mandatory  part  of  the  decree  as  relates  to 
the  injunction,  as  follows,  instead  of  saying  '^that  the  said 
should  be  restrained,"  &c.,  say  "that  you,  the  said  , 
should  be,"  &c.,  and  instead  of  the  words  "this  court,"  say 
"our  said  court")  We,  therefore,  in  consideration  of  the 
premises,  do  hereby  strictly  enjoin  and  command  you,  the  said 
,  your  servants,  agents  and  workmen,  (or  according  to 
the  command  of  the  writ,  as  the  case  may  be,)  under  the  penalty 
that  may  fall  thereon,  that  you,  and  every  of  you,  do,  from 
henceforth  and  forever,  absolutely  desist  and  refrain  from  [here 
repeat,  in  the  present  tense,  the  mandatory  part  of  the  decree 
relating  to  the  injunction.) 

Witness,  &c. 

Petition  for  injunction  to  stay  waste  after  bill  filed. 

[Title  of  cause  and  address.) 
The  petition  of  the  said  complainant  respectfully  shows,  that 
the  said  ,  one  of  the  above-named  defendants,  has  com- 

mitted, or  caused  to  be  committed,  great  waste,  spoil  and  destruc- 
tion upon  certain  of  the  lands  and  premises  in  the  bill  of  the 
said  complainant  mentioned,  called  the  ,  [or  otherwise 

briefly  describing  the  premises  for  identification,)  said  to  contain 

(a)  It  is  not  usual  to  issue  a  second  petual.  The  writ  may,  however,  be 
writ  in  cases  where  an  injunction  is,  issued  and  served.  Bruithwaite's  Pr. 
at  the  hearing  of  the  cause,  made  per-       229. 


296  FORMS   OF   PLEADINGS. 

acres,  and  mortgaged  by  the  said  to  the  said  com- 

plainant, as  in  the  said  bill  is  alleged,  by  cutting  down  the  timber 
and  trees  which  were  standing  and  growing  upon  the  said  prem- 
ises, or  causing  the  same  to  be  cut  down,  and  a  large  quantity 
whereof,  cut  up  into  cordwood,  now  remains  upon  the  said 
premises. 

And  your  petitioner  further  shows,  that  the  said  has 

advertised  for  public  sale,  on  the  day  of  next,  the 

wood  so  cut  down,  thereby  declaring  his  intention  to  make  sale 
thereof;  and  that  he  intends  to  commit,  or  cause  to  be  committed, 
further  waste,  spoil  and  destruction  in  and  upon  the  said  prem- 
ises, by  cutting  down  the  trees  growing  thereon,  and  causing  the 
same  to  be  carried  away,  whereby  the  petitioner's  security  is 
greatly  diminished,  and  he  is  in  danger  of  sustaining  loss. 
Your  petitioner  therefore  prays,  that  a  writ  of  injunction  may 
issue  out  of  this  court,  to   be   directed   to   the   said  , 

and  his  workmen,  servants  and  agents,  commanding  them,  and 
each  and  every  of  them,  that  under  the  penalty  that  may  fall 
thereon,  they  and  every  one  of  them,  do  henceforth  absolutely 
desist  and  refrain  from  felling  or  cutting  down  any  timber  or 
other  trees  standing,  growing  or  being  in  or  upon  the  premises 
before  mentioned,  or  any  part  thereof,  and  from  taking  and 
carrying  away,  or  causing  to  be  taken  and  carried  away,  any 
wood  lying  and  being  upon  the  said  premises,  or  any  part  thereof, 
and  from  committing  or  doing  any  further  or  other  waste  or 
spoil  in  or  upon  the  said  premises,  or  any  part  thereof,  or  in  and 
upon  any  other  part  of  the  mortgaged  premises.  And  your 
petitioners  will  ever  pray,  &c. 

{Signature  of  solicitor  and  counsel.) 

Affidavit  of  verification  of  petition.    New  Jersey,  to 
wit —  ,  the  above-named  petitioner  being  duly  sworn 

according  to  law,  deposes  and  says — that  the  matters  and  things 
set  forth  in  the  above  petition  are  true;  and  that  the  said 
ha«,  to  the  personal  knowledge  of  this  deponent,  within 
days  past,  cut  down  a  number  of  trees  upon  the  mortgaged 
premises  mentioned,  and  cut  the  same  up  into  cordwood,  and 
that  he  has  advertised  the  same  for  sale. 


INJUNCTION.  297 

And  this  deponent  further  says,  that  he  verily  believes  that 
the  said  intends  to  go  on  committing  waste  and  destruc- 

tion of  the  timber  standing  and  growing  upon  the  said  premises; 
and  ihat  the  mortgaged  premises  are  a  scanty  security  for  the 
money  due  upon  this  deponent's  mortgage;  and  he  further  says, 
that  if  the  wood  is  taken  off,  the  premises  will  not,  in  deponent's 
opinion,  bring  the  amount  of  the  mortgage  debt,  with  interest 
and  costs  of  suit ;  and  that  the  said  {(he  mortgagor)  is 

insolvent,  and,  though  personally  liable  therefor,  is  unable  to 
pay  any  excess  of  that  debt  above  the  proceeds  of  the  sale  of  the 
mortgaged  premi3es.(a) 

Petition  for  injunction  to  stay  waste  after  decree. 

{Title  of  cause  and  address.) 

The  petition  of  ,  above  named,  respectfully  shows,  that 

heretofore  your  petitioner  filed  his  bill  of  complaint  in  this  hon- 
orable court  against  the  above-named  ,  defendant,  for  the 
foreclosure  and  sale  of  certain  mortgaged  premises,  situate  in  the 
township  of  ,  in  the  county  of  ,  in  this  state,  mort- 
gaged by  the  said  to  your  petitioner,  and  which  said 
mortgaged  premises  are  more  particularly  described  in  the  said 
bill  of  complaint;  that  process  of  subpoena  to  appear  and  answer 
the  said  bill,  directed  to  the  said  defendant,  has  been  regularly 
issued,  and  returned  served,  and  such  further  proceedings  had 
in  the  said  cause,  that  on  the  day  of  instant  it  was, 
among  other  things,  ordered,  adjudged  and  decreed,  that  {briefly 
state  the  substance  of  the  decree;)  but  as  to  the  said  bill,  parties, 
object,  proceedings  and  decree,  your  petitioner,  for  greater  cer- 
tainty, prays  leave  to  refer  to  the  files  of  this  court;  that  no 
execution  has  as  yet  issued  on  the  said  decree,  and  your  peti- 

(a)    After  sale   of   the   mortgaged  is  not  authorized  to  cut  down  timber 

premises  under  decree  and  execution,  and  commit  waste  upon  the  premises, 

the  mortgagor  in  possession  will  be  even  if  the  proceeds  were  applied  to 

restrained     from    committing    waste.  the  extinguishment  of  his  debt.   Yoide 

Phoenix  v.    Clark,   2    Hal.    Ch.   447.  v.  Richards,  Soj:  538. 
And  a  mere  mortgagee  in  possession 


298  FORMS   OF   PLEADINGS. 

tioner  is  advised  that  none  can  issue  until  the  expiration  of  ten 
days  after  pronouncing  the  said  decree,  without  the  special  order 
of  this  court  therefor. 

And  your  petitioner  further  shows,  that  the  said  mortgaged 
premises,  with  the  appurtenances,  decreed  to  be  sold  as  aforesaid, 
are  a  scanty  and  insufficient  security  for  the  payment  of  the  debt, 
interest  and  costs  due  and  ordered  to  be  paid  to  your  petitioner 
as  aforesaid,  the  said  mortgaged  premises,  with  the  appurtenances, 
being  worth,  before  the  committing  of  the  waste  and  destruction 
hereafter  mentioned,  only  about  dollars,  which  sum  is 

several  hundred  dollars  less  than  the  debt,  interest  and  costs  due 
and  ordered  to  be  paid  to  your  petitioner  as  aforesaid. 

And  your  petitioner  further  shows,  that  the  said  is  em- 

barrassed in  his  pecuniary  affairs,  and  unable  to  pay  the  balance 
that  will  remain  due  to  your  petitioner  after  the  sale  of  the  said 
mortgaged  premises,  with  the  appurtenances,  if  sold  for  their 
full  value. 

And  your  petitioner  further  shows,  that  on  the  day  of 

,  &c.,  the  said  did  pull  down  and  remove  from 

the  said  mortgaged  premises  a  barn,  of  the  value  of  about 
dollars,  and  has  also  removed  a  part  of  the  fencing  stuff  from 
the  said  premises,  and  has  threatened  to  remove  the  kitchen 
attached  to  the  dwelling-house  standing  and  being  on  the  mort- 
gaged premises. 

And  your  petitioner  verily  believes,  that  the  said  will 

commit  other  waste,  spoil  and  destruction  in  and  upon  the  said 
mortgaged  premises,  unless  restrained  from  so  doing  by  this 
honorable  court.  Your  petitioner  therefore  prays  that  a  writ  of 
injunction  may  issue  out  of  and  under  the  seal  of  this  honorable 
court,  to  be  directed  to  the  said  ,  his  workmen,  servants 

and  agents,  and  each  and  every  of  them,  strictly  enjoining  and 
commanding  them,  and  all  and  every  of  them,  under  the  penalty 
that  may  fall  thereon,  henceforth  absolutely  to  desist  and  refrain 
from  removing  off"  the  said  mortgaged  premises,  or  destroying 
or  in  any  way  injuring  any  building  or  fences,  or  fruit,  timber 
or  shade  trees  on  said  premises,  and  from  committing  any  other 
or  further  waste,  spoil  or  destruction  in  or  upon  the  said  mort- 


INJUNCTION.  29& 

gaged  premises,  or  any  part  thereof,  until  the  further  order  of 
this  court. 

And  your  petitioner  will  ever  pray,  &c. 

(Signature  of  solicitor  and  counsel.) 

New  Jersey,  ss. —  ,  the  petitioner  in   the   foregoing 

petition  named,  being  duly  sworn,  on  his  oath  says — that  the 
matters  and  things  therein  Fet  forth,  so  far  as  they  relate  to  his 
own  acts  and  deeds,  are  true,  and  so  far  as  they  relate  to  the 
acts  and  deeds  of  any  other  person  or  persons,  he  believes  them 
to  be  true ;  and  that,  &c,,  {setting  out  in  short  the  mischief  com- 
plained of.) 

(Signature.) 

Sworn,  &c. 

Special  order  for  injunction. 

(Title  of  cause.) 

Upon  motion  made  this  day  on  behalf  of  ,  of  counsel 

with  the  complainant,  and  upon  reading  the  petition  of  the  said 
complainant,  and  his  affidavit  thereto  annexed,  in  and  by  which 
said  petition  it  appears,  among  other  things,  that  a  decree  has  been 
made  in  this  cause  for  the  sale  of  certain  mortgaged  premises,  situ- 
ate in  the  township  of  ,  in  the  county  of  ,  in  this 
state,  mortgaged  by  the  above-named  to  the  complainant ; 
and  that  certain  ^\'aste  has  been  done,  and  further  waste  is  threat- 
ened in  and  upon  said  mortgaged  premises ;  and,  upon  examin- 
ing the  bill,  proceedings  and  decree  in  the  said  petition  mentioned 
and  referred  to  :  It  is,  on  this  day  of  ,  in  the  year, 
&c.,  by  his  Honor  ,  Chancellor  of  the  State  of  New 
Jersey,  ordered,  that  the  said  petition  and  affidavit  be  filed,  and 
that  an  injunction  do  forthwith  issue  out  of,  and  under  the  seal 
of  this  court,  directed  to  the  said  and  his  workmen,  ser- 
vants and  agents,  therein  and  thereby  commanding  them,  and  all 
and  every  of  them,  that  under  the  penalty  that  may  fall  thereon, 
they,  and  each  of  them,  do,  from  henceforth,  altogether  and  abso- 
lutely, desist  and  refrain  from  removing  off  the  said  mortgaged 
premises,  or  destroying  thereon,  any  building,  fences,  fruit,  timber 


300  FORMS   OF   PLEADINGS. 

I 

or  shade  trees,  and  from  committing  or  doing  any  other  or  further 
waste,  spoil  or  destruction,  in  or  upon  the  said  premises,  or  any 
part  thereof,  until  the  further  order  of  this  court. 

Petition  for  injunction  where  bill  is  presented  to 
a  master.(a) 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

The  petition  of  respectfully  shows,  that  your  petitioner 

has  filed  in  this  court  his  bill  of  complaint  against  and 

,  praying  reh'ef  touching  the  matters  therein  set  forth; 
and  he  is  advised  that  the  issuing  of  a  writ  of  injunction  is 
necessary  to  his  effectual  relief.  He  therefore  respectfully  prays, 
that  your  Honor  will  grant  him  an  injunction,  agreeably  to  the 
prayer  of  his  said  bill. 

{Signature  of  solicitor  and  counsel.) 

( The  master  will  make  his  report  at  the  foot  of  this  petition.) 

Master's  report  for  injunction. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

The  subscriber,  the  master  of  the  Court  of  Chancery  desig- 
nated by  his  Honor  the  Chancellor  to  report  on  the  propriety 
of  issuing  writs  of  injunction  in  the  absence  of  the  Chancellor 

(a)  In  the  absence  of  the  Chancel-  plainant  in  the  first  instance,  and  will 

lor  from  the  city  of  Trenton,  a  petition  be  included  in  the  taxed  bill  of  costs, 

addressed   to   him   for  an  injunction  Application  for  the  dissolution  of  such 

may  be  presented  to  such  master  of  injunction  is  to  be  made,  as  in  other 

the  court,  residing  at  the  city  of  Tren-  cases,  to  the  Chancellor.     Eide  121. 

ton,  as  the  Chancellor  shall  for  that  At   present  there  is  no  such   master 

purpose  by  order  designate,  and  the  designated  to  grant  injunctions.     The 

master  shall  exercise  the  power  of  re-  Vice  Chancellors  are  empowered  to 

porting  upon  the  propriety  of  issuing  grant    injunctions,    and     injunctions 

the  injunction  prayed  for  ;  and  in  case  issue  upon  filing  their  determination 

the  master  shall  report  that  an  injunc-  advising  the  same.    The  allowance  or 

tion  ought  to  issue,  it  shall  be  issued  denial  by  a  Vice  Chancellor  of  an  in- 

by  the  clerk,  on  filing  with  him  the  junction  will  be  endorsed  on  the  back 

said  petition  and  report.     The  injunc-  of  the  bill  or  petition,  in  the  same 

tion  master  is  entitled  to  a  fee  of  two  manner  as  on  application  for  injunc- 

dollars  iipon  the  allowance  of  the  writ ;  tion  to  the  Chancellor,  and  a  petition 

which  sum  must  be  paid  by  the  com-  is  unnecessary.     See  Rule  131. 


INJUNCTION.  301 

from    the   city  of  Trenton,   respectfully   reports,  that,  having 

perused  the  bill  mentioned  in  the  foregoing  petition,  and  the 

affidavits  thereto  subjoined,  he  is  of  opinion  that  *  an  injunction 

should  issue  agreeably  to  the  prayer  of  the  bill;    (or,  if  not 

allowed,  after  *  say,  "  the  injunction  prayed  for  ought  not  to  be 

granted.") 

All  which  is  respectfully  submitted. 

{Signature  of  master.) 
Dated,  &c. 

Rule  for  injunction  where  the  master  reports  an 
allowance. 

{Title  of  cause.)  \         {Date  of  rule.) 

,  the  master  of  this  court  designated  by  the  Chan- 
cellor to  decide  upon  the  propriety  of  granting  injunctions  in 
the  absence  of  the  Chancellor  from  the  city  of  Trenton,  having 
reported  that  he  is  of  opinion  that  an  injunction  ought  to  issue 
agreeably  to  the  prayer  of  the  petition  in  this  cause :  It  is  ordered, 
on  motion  of  ,  solicitor  of  the  complainant,  that  an  injunc- 

tion do  issue  accordingly. 

By  the  court. 

Clerh. 

Bond   on  allowing  injunction  under  rule   12 7. (a) 

Know  all  men  by  these  presents,  that  {principal)  and 

and  {sureties)  are  held  and   firmly  bound  unto 

{the  defendant),  in    the   sum  of  dollars,  lawful 

money  of  the  United  States  of  America,  to  be  paid  to  the  said 

{the  defendant),  his  executors,  administrators  or  assigns. 

(a)  Where  an  injunction  is  granted  court  shall  eventually  decide  that  the 

ex  parte,  the  Chancellor  or  master  may,  injunction  was  unfairly  obtained  ;  the 

at  his  discretion,  take  from  the  com-  damages   to    be   ascertained   in   such 

plainant  a  bond  to  the  party  enjoined,  manner  as  the  Chancellor  shall  direct. 

in  such  sum  as  may  be  deemed  suffi-  Rule  127.     As  to  the  mode  of  obtain- 

cient,  either  with  or  without  sureties,  ing  and  proceeding  upon  an  attach- 

conditioned  to  pay  to  the  party  en-  ment  for  breach  of  an  injunction,  see 

joined  such  damages  as  he  may  sustain  Murdoch's  Case,  2  Bland  461,  486. 
by   reason   of  the  injunction,   if  the 


302  FORMS   OF   PLEADINGS. 

Tor  which  payment,  well  and  truly  to  be  made,  we  bind  our- 
selves, our  and  each  of  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents.  Sealed  with 
our  seals.     Dated  the  day  of  ,  eighteen  hundred 

and  .  * 

The  condition  of  the  above  obligation  is  such,  that,  whereas, 
in  a  certain  cause  in  the  Court  of  Chancery  of  the  State  of  New 
Jersey,  wherein  is  complainant,  and  is  defendant,  f 

an  order  has  been  this  day  made  that  an  injunction  do  issue,  on 
the  application  of  the  said  (complainant)  against  the  said 
{defendant.) 

Now,  therefore,  if  the  said  (complainant)  shall  pay  to  the  said 
(defendant)  such  damages  Ps  he  shall  have  sustained  by  reason 
of  said  injunction,  (the  damages  to  be  ascertained  in  such  man- 
ner as  the  Chancellor  shall  direct,)  in  case  the  said  court  shall 
eventually  decide  that  the  said  injunction  was  unfairly  obtained, 
then  this  obligation  to  be  void,  otherwise  to  be  and  remain  in 
full  force  and  virtue. 

Sealed  and  delivered  in  presence  of — 

(Add  justification  of  sureties  inform  as  on  page  71,  ante,  in 
double  the  amount  of  the  bond.) 

Bond  on  allowing  injunction  to  stay  ejectment 
suit  after  issue  joined  therein.(a)     As  in  preceding  form 

(a)  No  injunction  shall  issue  to  stay  ant   shall   give  bond,  with   sufficient 

proceedings  at  law  in  any  mixed  action  sureties,   in   the   penalty   of  at   least 

after    verdict   or   judgment,    on    the  double  the  rent  of  the  premises  for 

application   of  a  defendant   in   such  two  years,  if  the  premises  are  leased 

proceedings  at  law,  unless  the  appli-  at  a  fixed  rent,  or  if  not  leased,  then 

cant  shall  first  deposit  with  the  clerk  in   such   sum  as    the   Chancellor   or 

in  chancery  such   sum  of  money  as  master   shall   direct,   conditioned   for 

the  Chancellor  shall  direct,  or  give  the    payment    to    the    party   against 

such  security,  by  bond,  to  the  party  whom  such  injunction  is  granted,  of 

against  whom  the  injunction  is  prayed  all  such  damages  and  costs  as  may  be 

as  the  Chancellor  shall  direct.     Rev.,  awarded  to  him,  either  at  law  or  in 

"Chancery,^'    §   81.      No    injunction  this  court,  in  case  of  a  decision  against 

shall  be  allowed  to  stay  the  proceed-  the  party  obtaining  such   injunction, 

ings  in  an  ejectment  suit,  after  issue  Rule   126;   see  Rev.,  "Chancery,"  H 

joined  thereon,  unless  the  complain-  80-83. 


INJUNCTION.  303 

to  *,  then,  "  whereas,  the  above-named  {complainant  in  chancery) 
has  filed  his  bill  of  complaint  in  the  Court  of  Chancery  against 
the  above-named  (defendant,)  praying,  amongst  other  things,  for 
an  injunction  to  restrain  the  further  prosecution  of  an  action  of 
ejectment  brought  in  the  Supreme  Court  by  the  said 
against  the  said  ,  f  and  now  pending  therein,  and  at  issue, 

but  not  yet  brought  to  trial;"  {or  after  f,  "in  which  action  a 
verdict  has  been  obtained  by  the  said  against  the  said 

for  the  recovery  of  the  lands  in  controversy  in  that  suit.") 

Now,  therefore,  the  condition  of  the  above  obligation  is  such, 
that  if  the  above-bounden  {principal  and  sureties,)  their  exec- 
utors and  administrators,  or  any  of  them,  shall  and  do  |  well  and 
truly  pay,  or  cause  to  be  paid  to  the  said  {defendant,)  his  exec- 
utors, administrators  or  assigns,  all  such  damages  and  costs  as 
may  be  awarded  to  the  said  {defendant  in  chancery,)  either  at 
law  or  in  the  said  Court  of  Chancery,  in  case  of  a  decision 
against  the  said  {complainant,)  then  the  above  obligation,  &c. 
{conclude  as  in  preceding  form.) 

Bond  on  allowing  injunction  to  stay  proceedings 
at  law  in  a  personal  action  after  judgment. (a)  Proceed 
as  in  last  preceding  form  to  f,  omitting  the  words  "  of  ejectment," 
then  add,  "in  which  suit  a  judgment  was  recovered  by  the  said 

(a)    No   injunction   shall    issue   to  the  costs  at  law,  with  condition  to  abide 

stay  proceedings  at  law  in  any  per-  such  order  or  decree  as  the  Chancellor 

sonal  action  after  verdict  or  judgment,  shall  make  in  the  premises ;  or  if  the 

on  the  application  of  a  defendant  in  bill  be  dismissed,  to  pay  the  amount 

such  proceedings  at  law,  unless  a  sum  of  the  said  verdict  or  judgment,  and 

of  money  equal  to  the  amount  due  at  costs,  with  the  interest  thereon.    Rev., 

tlie  time  of  such  deposit  upon  said  "Chancery,"  g  80.    The  statute  applies 

verdict  or  judgment,  with  costs,  shall  to  a  bill  of  interpleader,  where  an  in- 

be  first  deposited  with  the  clerk  of  the  junction  is  prayed.     Morris  Canal  Co. 

€ourt  of  Chancery  by  the  applicant  v.  Bartlelt,  2  Gr.  Ch.  9.     The  expres- 

for  such  injunction,  or  unless  said  ap-  sion,  "  proceedings  at  law  in  a  per- 

plicant   shall   give  such  security,  by  sonal  action    after    verdict   or  judg- 

bond,  as  the  Chancellor  shall   deem  ment,"  means  proceedings  at  law  by 

good,  to  the  party  or  parties  at  law  execution,  or  suit  at  law  within  the 

against     whom    such    injunction     is  state,  upon  the  judgment.    C.&F.Co. 

prayed,  in   double   the  amount  then  v.  Titus,  11  C.  E.  Gr.  94. 
due  on  such  verdict  or  judgment,  and 


304 


FORMS   OF   PLEADINGS. 


against  the  said  ,  on  the  (date,)  for  the  sum  of 

dollars  damages  and  costs : "  Now,  therefore,  &c,,  (continue  as 
in  last  form  to  |,  then,  "abide  such  order  or  decree  as  the  Chan- 
cellor shall  make  in  the  premises,"  or,  if  the  bill  be  dismissed^ 
"  shall  and  do,  well  and  truly,  pay  to  the  said  ,  his  exec- 

utors, administrators  or  assigns,  on  demand,  the  said  sum  of 
dollars  recovered  by  the  said  judgment,  and  costs,  with 
the  interest  thereon,")  then  the  above  obligation,  &c.,  (as  before.) 


Notice  of  motion  to  dissolve  or  modify  injunc- 
tion, (a) 

(Title  of  cause.) 

As  on  page  148  to  *,  then,  "for  an  order  that  the  injunction 
heretofore  issued  in  this  cause  be  dissolved,  (or,  '  be  modified  so 
as  to  permit  the  defendants,'  &c.,)  with  costs,  and  for  such  other 
or  further  relief  as  may  be  just." 


(a)  No  motion  to  dissolve  an  in- 
junction before  answer  shall  be  enter- 
tained, except  on  the  ground  of  want 
of  equity  in  the  bill,  unless  the  de- 
fendant shall  show  good  cause  why  an 
answer  has  not  been  put  in ;  and 
where  no  answer  has  been  put  in,  and 
the  Chancellor  shall  allow  the  motion 
to  be  heard  on  affidavits  on  the  part  of 
the  defendant,  the  adverse  party  shall 
be  permitted  to  rebut  them  by  counter- 
affidavits  ;  but  such  affidavits,  on 
both  sides,  shall  be  taken  on  two 
days'  notice.  Rule  123.  No  motion 
to  dissolve  an  injunction  which  has 
been  regularly  obtained,  shall  be 
heard  until  ten  days  after  the  answer 
is  filed,  if  the  party  rely  in  any  man- 
ner on  his  answer  for  the  dissolution. 
Bev.,  "Chancery,''  ^  85.  Where  a 
motion  is  made  to  dissolve  an  injunc- 
tion upon  the  answer,  the  defendant 
shall  rely  on  his  answer,  and  on  the 
affidavits  annexed  thereto,  in  reply  to 
affidavits  annexed  to  the  bill ;  and  no 
affidavits,  except  those  annexed  to  the 


bill,  shall  be  read  on  such  motion  on 
behalf  of  the  complainant,  except  in 
reply  to  new  matters  set  up  in  the 
answer,  and  upon  which  the  defendant 
shall  in  any  manner  rely  for  a  dissolu- 
tion of  the  injunction.  Rule  124;  see 
Gariss  v.  Gariss,  2  JSeas.  320; 
3Mock  V.  Mulock,  11  C.  E.  Or.  461.  An 
injunction  can  be  removed  only  upon 
notice  and  motion  to  dissolve,  in  ac- 
cordance with  the  rule  of  the  court. 
Manhattan  Mfg.  Co.  v.  Van  Kenren, 
8  C.  E.  Gr.  251.  When  a  motion  is 
to  be  made  to  dissolve  the  injunction 
for  want  of  equity  in  the  bill,  a  gen- 
eral notice  is  sufficient.  When  the 
motion  is  for  any  special  matter  not 
touching  the  equity  of  the  case,  the 
notice  should  set  out  the  grounds  of 
the  motion.  Morris  Canal  Co.  v.  Bart- 
lett,  2  Gr.  Ch.  9.  On  a  motion  to  dis- 
solve an  injunction  for  want  of  equity 
in  the  bill,  or  because  the  equity  is 
answered,  affidavits  cannot  be  read  in 
opposition  to  it.  Brown  v.  Winans,. 
3  Stock.  267 ;  Merwin  y.  Smith,  1  Gr.  Ch. 


INJUNCTION. 


305 


Order  dissolving  injunction. (a) 

{Title  of  cav^e.) 
This  matter  coming  on  to  be  heard,  in  the  presence  of 
of  counsel  with  the  defendants,  f  "and  after  hearing 


,of 


182.  But  they  may  be  read  where 
the  motion  is  based  upon  some  techni- 
cal ground  merely.  And  where,  on  a 
motion  to  dissolve  an  injunction,  the 
defendant  relies  upon  anything  except 
a  want  of  equity  in  the  bill,  and  that 
the  equity  of  the  bill  Ls  answered,  he 
must  specify  in  his  notice  the  grounds 
upon  which  he  rests  for  a  dissolution. 
Brown  v.  Winans,  supra. 

For  practice  where  a  defendant 
moves  to  dissolve  an  injunction  and 
relies  on  new  matter,  see  Sobernheimer 
V.  Wheeler,  18  Steiv.  Eq.  619. 

The  general  rule  is,  that  in  order 
to  obtain  the  dissolution  of  an  injunc- 
tion, all  the  defendants  must  answer 
the  equity  of  the  bill.  But  it  is  a 
qualification  of  the  rule,  that  it  is 
enough  if  those  defendants  answer 
upon  whom  the  gmvamen  of  the 
charge  rests.  Adams  v.  Hudson  County 
Bank,  2  Slock.  535.  If  injunction  is 
irregular,  defendant  does  not,  by  ap- 
plying for  time  to  answer,  waive  the 
redress  he  is  entitled  to  by  means 
of  such  irregularity.  2  Ves.  20. 
Injunction  in  cause  abated  by  death 
of  either  party,  unless  motion  to 
revive  same  within  stated  time,  will 
be  dissolved.    Hinde  Pr.  598. 

Cases  of  waste  are  an  exception  to 
this  rule.  Affidavits  are  admissible 
in  support  of  the  bill  to  prove  acts  of 
waste.  Id.  The  allegations  will  be 
taken  as  true  where  they  are  not  met 
and  denied  by  the  answer  ;  and  if  the 
answer  does  not  fully  meet  the  case 
disclosed   by  the  bill,  the  injunction 


will  be  sustained.  Id.  The  affidavit 
of  a  third  party  annexed  to  an  answer 
cannot  be  read  upon  a  motion  to  dis- 
solve tlie  injunction  upon  the  answer, 
where  the  complainant's  affidavit 
alone  is  annexed  to  the  bill.  Mulock 
v.  3Iuloek,  11  a  E.  Gr.  463.  It  is 
not  necessary  that  affidavits  annexed 
to  and  filed  with  the  answer  should  be 
taken  upon  notice,  or  that  copies 
should  be  served  on  the  adverse  party. 
Gariss  v.  Garm,  2  Beas.  322. 

(a)  In  general,  an  injunction  will 
not  be  dissolved  unless  the  defend- 
ants implicated  in  the  charge  have 
answered.  It  is  the  duty  of  the  com- 
plainant to  take  the  requisite  steps  to 
compel  an  answer  from  all  the  defend- 
ants, and  if  he  neglects  to  do  so,  the 
injunction  may  be  dissolved,  though 
a  part  only  of  the  defendants  have 
answered.  Stoutenburgh  v.  Peek,  3 
Gr.  Ch.  446.  The  general  rule  is,  that 
where  the  equity  of  ihe  bill  is  com- 
pletely answered,  the  injunction  will 
be  dissolved.  Keron  v.  Coon,  11  C.  E. 
Gr.  26.  Upon  a  motion  to  dissolve  an 
injunction,  the  court  will  not  under- 
take to  determine  points  of  doubt  or 
difficulty  upon  which  the  merits  of 
the  case  may  depend,  but  will  leave 
them  to  be  determined  at  the  final 
hearing,  when  the  evidence  is  fully 
before  the  court.  Huffman  v.  Hum- 
mer, 2  C.  E.  Gr.  263.  Where  the 
complainant  took  no  proceedings  in 
the  suit  for  more  than  a  year  and  four 
months,  the  injunction  was  dissolved. 
Hendrickson  v.  Sor cross,  4   C.  E.  Gr. 


306  FOEMS   OF   PLEADINGS. 

counsel  with  the  complainant,"  {or,  "and  on  proof  of  service  of 
notice  of  motion,  and  no  one  appearing,")  in  opposition:  It  is, 
on  this,  &c.,  ordered,  that  *  the  injunction  heretofore  issued  in 
this  cause  be  and  the  same  is  hereby  dissolved,  with  costs,  {or 
add,  "  to  abide  the  event  of  this  suit.") 


The  like,  unless  cause  be  revived. (a)  As  in  preced- 
ing form  to  *,  then,  "the  complainant  {or,  'the  legal  representa- 
tives of  ,'  the  deceased  complainant,)  revive  this  suit  against 
the  legal  representatives  of  ,  {the  defendant,)  {or,  'the 
defendant,  ,')  within  days  after  service  upon  them, 
{or  'him')  of  a  copy  of  this  order,  or  that  in  default  thereof, 
the  injunction  heretofore  granted  in  this  cause  be  dissolved,  with 
costs." 

Notice  of  motion  to  ascertain  damages  occasioned 
by  injunction. (6) 

{Title  of  cause.) 

As  on  page  148  to  *,  then,  "  for  a  reference  to  ascertain  the 
damages  sustained  by  the  defendants  by  reason  of  the  injunction 

417 ;  see  Huffman  v.  Hummer,  mpra.  After   an   injunction   dissolved    on 

Or  where  an  injunction  has  been  ob-  the     merits,    the    complainant     may 

tained  on  the  complainant's  affidavit  amend  and  obtain  another  injunction 

alone  and  a  motion  is  made  by  the  on  the  amended  bill.   Buckley  v.  Corse, 

defendant,  upon  filing  his  answer,  to  Sax.  504. 

dissolve  the  injunction,  affidavits  can-  (a)  After   injunction    granted,   the 

not  be  read  upon  the  argument  of  the  defendant  died,  and  the  complainant 

motion,  either  in  support  of  the  bill  had  not  revived  the  suit;  it  was  held 

or   answer.     Merwin   v.  Smith,  1   Or.  that  the  proper  mode  of  proceeding 

Ch.   192.     When   an    injunction   has  on  the  part  of  the  defendant  in  such 

been  granted  upon  a  bill  filed  merely  case,  is  by  order  that  complainant  re- 

for  discovery,  in  aid  of  a  defence  at  vive.  within  a  specified  time  after  ser- 

law,  it   will   be  dissolved  as  soon  as  vice  of  the  order,  or  that,  in  default 

the   answer  is  perfected.     This   rule  thereof,  the  injunction  be  dissolved, 

does  not  apply  where  tlie  bill  is  filed  Cummins  v.  Cummins,  4  Hal  Ch.  173. 

for  relief  and  discovery  incidental  to  (6)  This  application  may  be  made  by 

the    granting    thereof.     Henwood    v.  motion  or  by  petition,  duly  verified ; 

Jarvis,  12  C.  E.  Or.  247.  whereupon,   if    the   facts   alleged   be 


INJUNCTION.  307 

heretofore  granted  in  this  suit,  and  for  such  further  or  other 
order  in  the  premises  as  may  be  just." 

Order  to  show  cause  on  foregoing  motion. 

AJter  formal  commencement ,  then,  "  the  complainant  show 
cause,  &c ,  {as  on  page  289,)  why  the  bond  given  by  him  on 
granting  the  injunction  in  this  cause  should  not  be  delivered  up 
to  the  defendant,  to  be  prosecuted  according  to  law." 

Order  of  reference  to  ascertain  damages.(a) 
( Title  of  cause.) 

As  inform  on  page  305  to  t,  then,  "and  it  appearing  that  due 
notice  of  motion  has  been  given  to  the  said  complainant,  and 
also  to  his  surety,  on  the  bond  hereinafter  mentioned,  and  the 
Chancellor  having  considered  the  matters  presented  on  this 
application,  and  being  of  opinion  that  the  complainant  was  not 
equitably  entitled  to  the  injunction  obtained  by  him  *,  and  that 
the  defendant,  ,  is  entitled  to  recover  in  this  court  under 

the  bond  given  on  granting  the  injunction,  any  damages  sus- 
tained by  him  by  reason  of  the  injunction  issued  in  this  cause  :  It 
is  thereupon,  on  this,  &c.,  ordered,  that  it  be  referred  to  *  , 

one  of  the  Vice  Chancellors,  to  hear  this  matter  for  the  Chancellor, 
and  to  ascertain  and  report  to  him  whether  said  has  sus- 

tained any  such  damages,  and  the  amount  thereof,  if  any ;  and 
to  advise  the  Chancellor  what  order  or  decree  to  make  there- 
upon ; "  {or  after  *  say,  "  ,  esquire,  one  of  the  special  mas- 

sufEcient  to  justify  such  a  course,  an  bond  cannot  be  taken  from  the  files 
order  will  be  granted  for  the  com-  of  chancery,  without  the  consent  of 
plainant  to  show  cause  why  the  bond  all  the  obligees ;  where  there  is  no 
given  on  granting  the  injunction  consent,  a  certified  copy  should  be  de- 
should  not  be  prosecuted.  Easton  v.  livered  to  the  applicant,  the  clerk  to 
N.  Y.  &  L.  B.  R.  R.  Co.,  11  C.  E.  produce  the  original  in  evidence  when 
Gr.  359  ;  Cook  v.  Chapman,  3  Steiv.  Eq.  properly  required  so  to  do.  Easton  v. 
114;  see  Smith  v.  Kuhl,  11  C.  E.  Gr.  L.  B.  R.  R.  Co.,  supra. 
97 ;  Beck  v.  Morris,  May  T.,  1877.  (a)  Green  v.  Philadelphia  Co.,  11  C. 
Where  the  suit  on  an  injunction-bond  E.  Gr.  443  ;  Cook  v.  Chapman,  3  Stew. 
is  prosecuted  in  a  court  of  law,  the  Eq.  114. 


308  FORMS   OF   PLEADINGS. 

ters  of  this  court,  to  ascertain  and  report  whether  said  has 

sustained  any  such  damages,  and  if  so,  the  amount  thereof;  and 
that  he  return  with  his  said  report  all  depositions  and  other 
evidence  taken  before  him  in  pursuance  of  this  order.") 

Order  ascertaining  damages  on  injunction,  and 
directing  payment  by  sureties. 

{Title  of  cause.) 

{The  following  order  was  made  on  a  hearing  before  a  Vice 
Chancellor.  In  case  an  order  is  made  on  a  report  of  a  master,, 
the  usual  practice  as  to  reports  is  observed.) 

This  matter  coming  on  to  be  heard  in  the  presence  of,  &c,, 
[and  stating  the  proceedings  briefly,)  and  it  appearing  that  the 
defendant,  ,  has  sustained  damage  by  reason  of  the  injunc- 

tion issued  in  this  cause,  to  the  amount  of  dollars  :    It  is 

on  this,  &c.,  ordered  and  adjudged  that  the  said  {complainant 
and  sureties,  naming  them,)  pay  to  the  defendant,  ,  the 

sum  of  ,  &c.,  for  his  damages  as  aforesaid,  together  with 

the  taxed  costs  of  this  proceeding. 

And  it  is  further  ordered,  that  unless  the  said  {complainant  and 
sureties)  pay  the  said  damages  and  the  said  taxed  costs  within 
days  after  service  upon  them  of  a  copy  of  this  order  and  of 
said  costs,  an  execution  issue  out  of  this  court  therefor,  accord- 
ing to  the  practice  of  this  court. 

Order  for  delivery  of  bond  for  prosecution  at  law. 

As  inform  on  page  305  to  *,  then,  "  it  is,  &c.,  ordered,  that  f 
the  injunction-bond  given  by  in  this  cause  be  delivered  up 

to  the  said  defendant  for  prosecution  at  law,  as  he  may  be  ad- 
vised." {Or,  if  all  the  obligees,  if  there  be  more  than  one,  do  not 
consent,  after  t,  "  the  clerk  of  this  court  deliver  to  the  defend- 
ant a  certified  copy  of  said  bond,  and  that  he  produce  the 
original  in  evidence  whenever  properly  required  so  to  do.") 


NE   EXEAT. 


309 


NE  EXEAT.(a) 


Affidavit  to  obtain  a  ne  exeat. 

{Annex  an  affidavit,  in  substantially  the  following  form,  to  the 
hill  or  petition.) 

State  of  New  Jersey,    \^ 
county  of  ,    j     ' 

(After  the  general  form  of  verification  as  on  page  16,  ante, 
insert  as  in  form  after  *  below;  or,  if  a  verification  be  of  a  peti- 
tion after  bill  filed,  commence  as  follows:) 


(a)  No  writ  of  ne  exeat  shall  be 
granted  unless  satisfactory  proof  be 
made  to  the  Chancellor  that  the 
defendant  designs  quickly  to  depart 
from  this  state.  Rev.,  "Chancery," 
^  16.  To  entitle  the  complainant  to 
a  writ  of  ne  exeat,  he  must  be  in  a  situ- 
ation either  to  swear  positively  that  so 
much  money  is  actually  due,  or  in 
some  other  manner  to  point  out  to  the 
court  the  sum  to  be  marked  on  the 
writ.  Rico  V.  Gaultier,  3  Aik.  501; 
Boehm  v.  Wood,  Turn.  &  R.  332.  Ex- 
cept in  the  case  of  a  suit  for  an  account, 
in  which  it  will  be  sufficient  if  he  can 
swear  that  to  the  best  of  his  belief  any 
particular  sum,  at  the  least,  would  be 
found  due  to  him  upon  a  balance,  if 
the  account  was  taken.  I  hid. ;  Mac- 
Donough  v.  Gaynor,  3  C.  E.  Gr.  249. 
The  affidavit  must  be  as  positive  as  to 
the  equitable  debt  as  an  affidavit  of  a 
legal  debt  to  hold  to  bail.  Jackson  v. 
Fetrie,  10  Ves.  164.  Upon  a  bill  filed 
for  alimony  only,  the  affidavit  of  the 
wife  is  sufficient  to  support  an  order 
for  a  ne  exeat.  Yule  v.  Yule,  2  Stock. 
138.  In  such  case,  the  affidavit  should 
-show  that  the  defendant  intends  to  go 
abroad.  It  must  be  positive  as  to  this 
point,  or  as  to  his  threats  or  declara- 
tions to  that  effisct,  or  facts  evincing 


it,  or  circumstances  amounting  to  it. 
Ibid.;  Anshuiz  v.  Anshutz,  1  C.  E.  Gr. 
162.  It  is  not  necessary  that  the  affi- 
davits should  show  that  defendant  is 
about  to  depart  in  order  to  avoid  the 
jurisdiction,  if  his  departure  would 
defeat  the  suit.  MacDonough  v.  Gay- 
nor, supra;  Baker  v.  Haily,  2  Dick. 
632 ;  see  also  p.  14,  (n.),  ante. 

A  writ  of  ne  exeat  regno  was  granted 
in  England  after  the  decree  for  ali- 
mony was  passed,  {Shaftoe  v.  Shaftoe,  7 
Ves.  172;  Coglar  v.  Coglar,  1  Ves.,  Jr., 
94,)  on  the  application  of  the  wife,  and 
her  affidavit  that  her  husband  was 
about  to  leave  the  country  to  avoid 
payment.  2  Bish.  M.  &  D.,  U  SOS- 
SOS.  In  the  United  States  such  a 
writ — ne  exeat  republica — may  be 
granted,  even  before  the  decree,  any 
time  after  suit  has  begun  {Bylandt  v. 
Bylandt,  2  Hal.  Ch.  28,)  on  the  wife's 
petition  and  affidavit  ( Yule  v.  Yule,  2 
Slock.  138,)  and  prior  to  the  decree 
for  alimony.  Denton  v.  Denton,  1 
Johns.  Ch.  364.  Her  single  affidavit 
is  enough,  but  her  allegation  that  he 
is  going  to  leave  the  state  must  be 
explicit.  Yide  v.  Yule,  supra.  If  the 
husband  gives  security,  the  writ  will 
be  discharged. 


310  FORMS   OF   PLEADINGS. 

,  the  above-named  complainant,  says,  *  that  ,  the 

above-named  defendant,  is  justly  indebted  to  this  deponent  in 
the  sum  of  dollars  for  {state  cause  of  indebtedness),  "  for 

the  recovery  of  which  he  has  lately  exhibited  his  bill  in  this 
court  against  the  said  defendant;"  and  that  being  so  indebted, 
he,  the  said  defendant,  has  lately  threatened  and  given  out  that  he 
will  speedily  leave  this  state  and  go  to  the  Republic  of  France. 
And  this  deponent  verily  believes,  that  if  the  said  defendant 
should  be  suffered  to  leave  this  state,  this  deponent  will  either 
lose  his  said  debt,  or  the  same  will  be  very  much  endangered, 
and  it  will  be  difficult,  if  not  impossible,  for  this  deponent  to 
recover  the  same.  {If  in  a  divorce  case  the  affidavit  should  show 
that  the  defendant's  departure  will  defeat  the  complainant^ s  claim, 
or  that  the  defendant  is  leaving  the  state  for  that  purpose,  or  his 
threats  or  declarations  to  that  effect,  or  facts  evincing  his  purpose 
or  circumstances  amounting  to  it.) 

Order  for  ne  exeat. (a) 

{Title  of  cause.) 

The  complainant  having  filed  his  bill  against  the  defendant, 
to  be  relieved  touching  the  matters  therein  contained,  and  now, 
upon  reading  the  affidavit  of  annexed  to  the  said  bill, 

whereby  it  satisfactorily  appears  that  the  defendant,  , 

designs  quickly  to  depart  from  this  state :  It  is,  on  this,  &c.,  on 
motion  of  ,  of  counsel  with  the  complainant,  ordered, 

that  a  writ  of  ne  exeat  republica  be  awarded  against  the  said 
until  he  shall  fully  answer  the  complainant's  bill,  and 
this  court  shall  make  other  order  to  the  contrary;  and  the  said 
writ  is  to  be  endorsed  in  the  sum  of  dollars,  in  words  at 

length,  and  not  in  figures. 

Writ  of  ne  exeat.(6)  New  Jersey,  to  wit — The  State  of 
New  Jersey  to  the  sheriff  of  the  county  of  — Greeting : 

(a)  The  order   for   the  writ  states  interest,  having  regard  to  the  probable 

the  sum  in  which  the  defendant  is  to  duration  of  the  suit.     Gibert  v.  Colt, 

be  held  to  bail  upon  the  writ,  suffi-  JEopL  500 

cient   to  cover  not  only  the  existing  (6)  The  writ  is  to  be  endorsed  be- 

debt,  but  a  reasonable  amount  of  future  fore  it   issues  with   the   title  of  the- 


NE   EXEAT.  311 

Whereas,  it  is  represented  to  us,  in  our  Court  of  Chancery, 
before  our  Chancellor,  on  the  part  of  ,  complain- 

[l.  s.]     ant,  against  ,  defendant,  that  the  said  , 

[who  is  greatly  indebted  to  the  said  complainant,]  {or 
in  a  divorce  case  inserting  the  appropriate  allegations^  designs 
quickly  to  go  into  parts  without  the  State  of  New  Jersey,  as  by 
oath,  on  that  behalf  made,  appears,  which  tends  to  the  great 
prejudice  and  damage  of  the  said  complainant:  Therefore,  in 
order  to  prevent  this  injustice,  we  hereby  command  you  that 
you  do,  without  delay,  cause  the  said  personally  to  come 

before  you,  and  give  sufficient  bail  or  security  in  the  sum  of 
dollars,  lawful  money  of  the  United  States,  that  the  said 
will  not  go,  or  attempt  to  go,  into  parts  without  the  said 
state,  without  leave  of  our  said   court;   and   in  case  the  said 
shall  refuse  to  give  such  bail  or  security,  then  you  are  to 
commit  him,  the  said  ,  to  the  common  jail  of  your  county, 

there  to  be  kept  in  safe  custody  until  he  shall  do  it  of  his  own 
accord ;  and  when  you  have  taken  such  security,  you  are  forth- 
with to  make  and  return  a  certificate  thereof  to  our  Chancellor, 
in  our  Court  of  Chancery,  at  Trenton,  distinctly  and  plainly 
under  your  hand,  together  with  this  writ. 

Witness  ,  Chancellor  of  the  State  of  New  Jersey,  at 

Trenton  aforesaid,  the  day  of  ,  in  the  year,  &c. 

Solicitor,  ^^'''^- 

cause,  and  the  words  "the  defendant  son  v.  Bisbij,  Clarke  551.  Where  the 
is  to  give  bond  in  the  sum  of  writ  issues  against  a  personal  repre- 
dollars,"  in  words  at  length,  being  the  sentative,  at  thfe  instance  of  a  person 
amount  named  in  the  writ.  Beanies'  claiming  a  share  of  the  residue,  it 
Ne  Exeat  93.  This  is  done  as  a  guide  must  be  marked  for  the  whole  amount 
to  the  sheriff  to  take  sufficient  security,  due  from  the  defendant,  to  all  inter- 
by  bail-bond,  for  the  defendant's  yield-  ested  in  the  residue,  and  not  merely 
ing  obedience  thereto.  Hinde  Pr.  611.  for  the  share  of  the  residue  due  com- 
And  the  sheriff  must  take  a  bond  in  plainant.  Pannell  v.  Taylor,  Turn.  & 
the  sum  directed  by  the  court,  without  R.  100.  Where  the  writ  has  been 
-any  addition.  Gibert  v.  Colt,  svpra.  endorsed  for  a  larger  sum  than  is 
The  endorsement  will  be  signed  by  really  due,  the  court  may  order  that 
theChancellorora  Vice  Chancellor,  if  the  security  shall  be  given  for  so 
practicable;  but  if  the  writ  is  actually  much  only  as  is  really  due,  without 
marked  by  the  clerk,  it  will  be  pre-  quashing  the  writ,  ^nd  that  too  on  a 
sumed  to  have  been  so  done  in  pursu-  motion  to  quash  it.  Ibid.  ■ 
ance  of  the  order  of  the  court.     (Ilea- 


312  FORMS   OF   PLEADINGS. 

Return  to  ne  exeat  where  defendant  has  been 
arrested  and  has  given  security. (a)  I  certify  and  return 
that  I  have  caused  the  within-named  personally  to  come 

before  me,  and  he  has  found  bail  in  the  sum  of  dollars? 

according  to  the  command  of  the  within  writ. 

{Signature  of  sheriff.) 

The  like,  where  defendant  is  not  to  be  found.  I 
certify  that  the  within-named  is  not  to  be  found  in  my 

county. 

The  like,  where  defendant  has  been  arrested  and 
committed  for  want  of  bail.  1  certify  that  I  have  caused 
the  within-named  personally  to  come  before  me ;  and  he 

having  refused  to  give  the  bail  or  security  mentioned  in  the 
within  writ,  I  have  his  body  in  the  common  jail  of  the  county 
of  ,  under  my  custody. 

Bond  to  sheriff  upon  a  ne  exeat.(6)  Know  all  men 
by  these  presents,  that  we  ,  of  ,  and  and 

,  of  ,  are  held  and  firmly  bound  unto  , 

sheriff  of  the  county  of  ,  in  the  sum  of  dollars,  to 

be  paid  to  the  said  ,  sheriff  as  aforesaid,  or  his  assigns. 

For  which  payment  well  and  truly  to  be  made,  we  bind  our- 
selves, our  and  each  of  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents.  Sealed  with  our 
seals,  and  dated  the  day  of  ,  &c. 

Whereas,  the  above-bounden  has  been  arrested  upon  a 

writ  of  ne  exeat  issuing  out  of  and  under  the  seal  of  the  Court  of 
Chancery  of  the  State  of  New  Jersey,  in  a  certain  cause  therein 
depending,  wherein  is  complainant  and  is  defendant, 

and  is  now  in  custody  of  the  said  sheriff  by  virtue  thereof : 

Now,  the  condition  of  this  obligation  is  such,  that  if  the  said 
shall  *  not  depart  from  or  leave  this  state  without  the 

(a)  It  seems   that   instead  of  bail,  (6)  If    the   writ    be    granted,   the 

the  sheriff  may  take  a  deposit  of  the  amount  of  the  bond  to  be  given,  with 

amount     endorsed     upon     the    writ.  sureties,  being    freeholders,  shall   be 

Boehm  V.    Wood,    Turn.   &    R.   332,  fixed  by  the  court  and  endorsed  on 

340.  the  writ.     Rev.,  ^'Chancery,''  §  16. 


NE   EXEAT.  313 

permission  of  the  said  Court  of  Chancery,  {or  use  the  form  indi- 
cated by  rule  192,)  then  this  obligation  to  be  void  ;  otherwise,  to 
remain  in  full  force  and  virtue. 

Bond,  under  rule   192,  to  obtain  a  discharge  of 

ne  exeat.(a)  As  in  last  form  to  *,  then  add,  "cause  his  appear- 
ance to  be  entered  in  the  said  suit,  and  continue  such  appearance 
by  a  solicitor  of  said  Court  of  Chancery,  residing  in  the  State  of 
New  Jersey ;  and  shall  at  all  times  render  himself  amenable  to 
the  orders  and  process  of  said  court  pending  such  suit,  and  to 
such  process  as  shall  be  issued  to  compel  the  performance  of  the 
final  decree  therein,  and  shall  appear  before  said  court,  or  any 
officer  thereof,  when  so  required  by  the  order  of  said  court,  then 
this  obligation,"  &c.,  {as  in  last  form.) 

Notice  of  motion  for  discharge  of  ne  exeat.(6) 

{Title  of  cause.) 

As  on  page  148  to  *,  then,  "on  the  part  of  the  defendant, 
,  that  the  writ  of  ne  exeat  republica  issued  against  him 

(a)    When   a  defendant    shall    be  the  ground  of  irregularity,  or  upon 

-arrested  on  a  writ  of  ne  exeat,  the  sheriff  the  merits,  supported,  if  necessary,  by 

may,  in  lieu  of  the  bond  heretofore  affidavits.      MacDonough   v.    (iaynor, 

used  and  required,  take  a  bond  in  the  supra;   Grant  v.   Grant,  3  Buss.  598, 

sum  endorsed  on  the  writ,  with  sure-  602.   And  before  answer.    Caryv.Cary, 

ties  as  required  by  law,  with  condi-  12  Stew.  Eg.  3.     But  the  application 

tion  that  the  defendant  shall  cause  his  must  be  made  without  unreasonable 

appearance  to  be  entered  in  the  suit,  delay,  and  before  the  cause  is  noticed 

and  continue  such  appearance  by  a  for   final    hearing.     Miller  v.    Miller, 

solicitor  of  this  court,  residing  in  the  Sax.  386.     A  defendant  is  entitled  to 

.state ;  and  shall  at  all  times  render  the  benefit  of  his  sworn  answer  to  the 

himself  amenable  to  the  orders  and  charges  of  the  bill  upon  which  a  ne 

process  of  this  court  pending  the  suit,  exeat   issued      Jewett  v.    Bowman,    12 

and  to  such  process  as  shall  be  issued  C.  E.  Or.  275.    A  motion  to  discharge 

to  compel  the  performance  of  the  final  the  writ  was  refused,  on  the  ground  of 

decree  therein,  and  will  appear  before  insufficiency  of  the  answer  and   affi- 

this  court,  or  any  officer  thereof,  when  davits.     Myer  v.  Myer,  10  C  E.  Or. 

so  required  by  the  order  of  this  court.  28.     Discharge  was  refused  upon  the 

Bale  192.  unsupported  affidavits  of  the  defend- 

(6)  The  party  may  apply  by  motion,  ant,  denying  affidavits  as  to  his  acts 

with  notice,  to  disharge  the  writ  on  and  declarations,  and  of  his  indebted- 


314 


FORMS   OP    PLEADINGS. 


pursuant  to  an  order  in  this  cause,  dated,  &c.,  and  the  said  order 
may  be  discharged,  with  costs ;  and  that  the  bond  given  by  the 
said  defendant  to  the  sheriff  of  ,  pursuant  to  the  said  order 

and  writ,  may  be  delivered  up  to  be  canceled. 


ABATEMENT   AND   REVlVOR.(a) 

Order  on  death  of  a  complainant  that  suit  proceed 
in  name  of  surviving  complainants. 

{Title  of  cause.) 
It  appearing  by  affidavit,  to  the  satisfaction  of  the  court,  that 
,  one  of  the  complainants  in  the  above-stated  cause,  has 


ness  to  his  copartner.  Houseworth's 
AdmW  V.  Hendrickson,  12  C  E.  Gr. 
60.  It  was  directed  that  the  writ 
should  be  discharged,  and  the  bond 
given  under  it  canceled,  on  the  de- 
fendant's giving  bond  with  security, 
in  the  sum  for  which  bail  was  ordered, 
conditioned  to  abide  the  decree  of  the 
court.  Ihid.  And  in  cases  where 
the  court  feels  constrained  to  dis- 
charge the  writ,  it  will  often  require 
security  to  abide  the  decree.  Mac- 
Donoucjh  V.  Gaynor,  ubi  sup.  And  the 
court  will  also  discharge  the  writ, 
upon  the  defendant's  paying  into 
court  the  sum  for  which  the  writ  is 
marked.  1  Ves.,  Jr.,  96.  Where 
sureties  had  been  induced  to  sign  a 
bond  substituted  for  a  ne  exeat  bond 
which  was  not  only  more  stringent 
than  they  supposed,  but  also  more 
stringent  than  the  order  or  rules  of 
court  required,  it  was  held  that  it  was 
the  province  of  the  court  to  say 
whether  there  had  been  a  breach  of 
the  condition,  and  whether  the  bond 
should  be  prosecuted.  Waulers  v.  Van 
Vorst,  1  Stew.  Eq.  103.     Chancery  has 


power  to  determine  the  question  of 
liability  on  a  ne  exeat  bond,  and  the 
extent  of  liability.     Ibid. 

(a)  The  abatement  of  a  suit  in 
equity  is  merely  an  interruption  to  the 
suit,  suspending  its  progress  until  new 
parlies  are  brought  before  the  court. 
Moxie  V.  Carr,  1  Sumn.  173.  The  abate- 
ment of  a  suit  in  equity  by  the  death 
of  a  party,  and  its  revival  against  his 
personal  representatives  by  a  bill  of 
revivor,  or  by  proceedings  under  the 
fifth  section  of  the  act  relating  to  the 
abatement  of  suits,  does  not  make  it  a 
new  suit.  It  is  still  the  same  suit,  in 
which  both  parties  are  entitled  to  the 
benefit  of  all  former  proceedings.  No 
answer  is  required  if  the  bill  has 
already  been  answered,  unless  a  dis- 
covery of  assets  is  desired ;  the  depo- 
sition of  witnesses,  if  any  have  been 
taken,  may  be  used  ;  and  if  the  cause 
has  proceeded  to  a  final  decree,  it  will 
remain  in  force  against  the  new  party. 
All  that  is  opened  for  litigation  is, 
whether  the  new  party  brought  before 
the  court  has  the  representative  char- 
acter   imputed    to    him.     Marlatt   v. 


ABATEMENT   AND   REVIVOR. 


315 


departed  this  life,  and  that  the  cause  of  action  survives  to  the 
surviving  complainants:  It  is,  &c.,  on  this,  &c.,  on  motion  of 
,  of  counsel  with  the  said  surviving  complainants,  ordered, 
that  the  said  suit  proceed  against  the  defendants  in  the  name  of 
the  surviving  complainants.(a) 


Warwick,  4  C  E.  Gr.  445,  Depiie,  J. 
The  rule,  irrespective  of  the  statute, 
is,  that  where  a  sole  plaintiff  dies 
before  decree,  the  suit  cannot  be 
revived  at  the  instance  of  the  defend- 
ant, or  his  legal  representative.  The 
statute  {"Aba'.ement")  has  not  altered 
the  practice,  except  by  providing  a 
more  expediiious  mode  of  proceeding 
by  order,  instead  of  resorting  to  a  bill 
of  revivor.  Benson  v.  Wooiverton,  1 
C.  E.  Gr.  110.  Where  one  or  more 
of  the  complainants  or  defendants 
die,  and  the  cause  of  action  does  not 
survive,  the  suit  abates  only  as  to  tlie 
person  or  persons  so  dying ;  and  the 
surviving  parties  may  proceed  with- 
out reviving  the  suit.  Rev.,  ^'Abate- 
ment" ^  4.  Where  there  has  been  a 
devise  of  the  real  estate  in  litigation, 
the  heirs  and  devisees  must  both  be 
made  parties  Peer  v.  Cuokerow,  1 
McCart.  371.  After  decree,  if  the  de- 
fendant, or  his  representative,  have  an 
interest  in  the  further  prosecution  of 
the  suit,  the  suit  may  be  revived 
at  his  instance.  Peer  v.  Cookerow,  2 
Beas.  136.  The  order  to  proceed 
without  reviving,  after  the  death 
of  a  party,  may  be  obtained  on  an 
affidavit,  or  otherwise  showing  to  the 
satisfaction  of  the  court  the  death 
of  the  party,  and  that  the  cause  of 
action  has  survived.  Jbid.  This 
section  is  intended  to  apply  to  cases 
where,  by  the  act  of  law,  the  cause  of 
action  survives.  The  act  is  designed 
to  save  the  necessity  of  filing  bills  of 
revivor,  not  supplemental  bills.  Moss 
V.  Hatfield,  1    Gr.  Ch.   363.     Where 


new  matter  must  be  shown  and  proved, 
a  supplemental  bill  must  be  filed.  Ibid. 
Nothing  in  the  abatement  act  shall 
prevent  the  reviving  of  any  suit,  &c., 
by  bill  of  revivor,  where  the  plaintiff, 
or  his  representative,  &c.,  may  prefer 
that  course  of  practice,  or  when  the 
court  may  deem  it  expedient  to  direct 
that  course  of  practice  to  be  pursued. 
Rev.,  '^ Abatement,"  §  9.  Where  a  suit 
abates  after  an  appeal,  but  before  the 
appellate  court  has  become  possessed 
of  the  cause,  it  must  be  revived  in  the 
court  below,  before  any  further  pro- 
ceedings can  be  had  on  the  appeal ; 
but  if  the  appellate  court  has  become 
possessed  of  the  cause,  that  court  may 
order  the  suit  to  stand  revived  in  the 
name  of  the  representatives  of  the 
deceased  party.  Rogers  v.  Pater  son, 
4  Paige  409 ;  see  p.  188,  ante,  (n.) 

(a)  In  every  suit  or  action  in  the 
Court  of  Chancery,  in  which  any  bill 
is  or  shall  be  filed,  and  in  which  there 
are  or  shall  be  two  or  more  plaintiffs 
or  defendants,  and  any  of  them  die, 
and  the  cause  of  action  does  not  sur- 
vive, but  other  persons  shall  become 
parties  in  interest,  in  right  or  by  the 
death  of  such  deceased  party,  such 
suit  shall,  by  reason  of  such  death,  be 
abated  only  with  respect  to  such  de- 
ceased party,  and  the  surviving  plain- 
tiff or  plaintiffs  may  proceed  against 
the  surviving  defendant  or  defendants 
without  reviving  the  suit  against  the 
representatives  of  the  deceased  party, 
or  any  other  who  may  become  inter- 
ested by  the  death  of  such  party ; 
but  in  such  case  such  representatives. 


516  FORMS   OF   PLEADINGS. 

Order  on  death  of  a  defendant  that  suit  proceed 
against  surviving  defendants. 

[Title  of  cause.) 
It  appearing,  &c.,  that  ,  one  of  the  defendants,  &c.,  has 

departed  this  life,  &c.,  and  that  the  cause  of  action  survives  to 
the  complainants  against  the  surviving  defendants:  It  is,  on 
this,  &c.,  ordered,  &c.,  that  this  suit  proceed  against  the  surviv- 
ing defendants. 

Order  reviving  suit  against  the  representative  of 
a  deceased  defendant.(«) 

{Title  of  cause?) 
It  appearing,  &c.,  ,  one  of  the  defendants  to  this  suit, 

has  departed  this  life,  and  that,  by  the  death  of  the  said  , 

and  ,  the  heirs-at-law  of  the  said  ,  deceased, 

{or  as  the  case  may  be),  have  become  interested  in  this  suit,  and 
that  the  complainants  choose  to  make  them  defendants  hereto : 
It  is,  on  this,  &c,,  on  motion  of  ,  of  counsel  with  the  com- 

plainants, ordered,  that  the  said  suit  stand  revived  against  said 
heirs-at-law,  and  that  the  said  and  ,  said  heirs-at- 

law  of  the  said  ,  deceased,  be  made  defendants  thereto,  in 

the  place  and  stead  of  the  said  ,  deceased. 

or  such   person  or   persons   as   shall  direct ;  and  unless  the  representatives 

become   interested    by   the   death   of  of  such  deceased  party,  or  others  who 

such   party,  shall   not   be   bound   by  may  become  interested  by  the  death  of 

any  order  or  decree  in  such  cause  to  such  party,  shall,  within  such  time 

which    they   are   not    made    parties.  after  such  service  as  aforesaid  as  the 

Rei:,  "Abatement,"  ^  5.  court  shall  limit  and  appoint,  appear 

(a)    If  the   plaintiff   or    plaintiffs  and  proceed  thereon  as  when  a  suit 

choose   to   make   the   representatives  has  been  revived  by  bill,  the  plaintiff 

of  the  deceased  party,  or  others  who  or  plaintiffs  may  cause  their  appear- 

may  become  interested  by  the  death  ance  to  be  entered,  and  in  such  case 

of   such    decedent,    parties    to    such  the  answer  of  the  deceased  party,  if 

suit,  no  bill  of  revivor  or  subpojna  any  there  be,  shall   be  deemed   and 

ad  revivendum  shall  be  necessary  ;  but  taken  as  and  for  the  answer  of  such 

the  court  shall  and  may,  by  rule  or  representatives,   or    other   person    or 

order,  as  often  as  there  shall  be  occa-  persons   interested    by   the   death   of 

sion  for  it,  diftct  the   suit  to   stand  such   party.     Eev.,  "Abatement"  |  5. 

revived,  which  rule  or  order  shall  be  See,   as   to   representation   of  person 

served   on   such   person    or    persons,  having  limited    administration,   &c., 

and  in  such  manner  as  the  court  may  Pamph.  L.,  1890,  p.  14. 


ABATEMENT   AND   REVIVOR.  317 

And  it  is  further  ordered,  that  the  said  and  appear 

in  this  suit,  and  proceed  therein  according  to  law  and  the  rules 
of  this  court,  within  days  after  service  upon  them  of  a 

copy  of  this  order;  and  in  case  they  fail  so  to  do,  that  the  com- 
plainants may  cause  their  appearance  to  be  entered,  *  (if  no 
answer  had  been  put  in  by  deceased  party,  and  the  time  for 
answering  had  expired  in  the  lifetime  of  the  deceased  party,  add 
after  *,  "and  that  the  bill  in  this  cause  be  taken  as  confessed 
against  the  said  ;"  or,  if  an  answer  had  been  put  in  by 

the  deceased  party,  and  no  further  answer  is  required,  after  *  add, 
"  and  the  answer  of  the  said  heretofore  put  in,  be  deemed 

and  taken  as  and  for  the  answer  of  the  said  .") 

Order  that  suit  be  revived  against  the  represen- 
tative of  deceased  sole  complainant.(a) 

{Title  of  cause.) 
It  appearing,  &c.,  ,  the   complainant  in   this  cause, 

departed  this  life  on  the  ,  &c.,  having  first  duly  made 

and  published  his  last  will  and  testament,  whereby,  among  other 

(o)  In  every  suit  or  action  in  the  the  court  may  direct,  to  which  aiuend- 
Court  of  Chancery,  in  which  any  bill  ment  or  amendments  the  defendant  or 
has  been  or  shall  be  filed,  and  the  defendants  shall  be  compellable,  by 
subpcena  returned  served,  and  in  rule  or  order  of  the  said  court,  to 
which  there  was,  is  or  shall  be  but  answer,  proceed  to  issue  and  exami- 
one  plaintiff  or  one  defendant,  and  the  nation  of  witnesses  and  production  of 
said  plaintiff  has  died,  or  shall  die,  proofs,  and  all  other  proceedings  shall 
the  lawful  representative  or  represen-  be  had  thereon  as  in  ordinary  cases, 
tatives  of  such  deceased  plaintiff,  or  Ber.,  "■Abatement,"  i  6.  Where  a  sole 
any  other  person  or  persons  interested  plaintiff  or  defendant  dies  after  decree, 
by  the  death  of  such  plaintiff,  shall  either  party  may  revive  the  suit.  Ben- 
ami  may,  upon  affidavit  thereof  by  sonv.  Woolver(on,l  O.  E.  Gr.llQ.  On 
him,  her  or  them,  or  any  other  person  the  death  of  a  lunatic,  the  office  of  a 
or  persons,  and  on  motion  made  in  guardian  ceases  ;  his  authority  thence 
court,  be,  by  rule  or  order  of  the  extends  only  as  to  the  settlement  of 
court,  inserted  as  a  complainant  or  his  account.  The  executor  or  admin- 
complainants  in  the  said  suit,  and  be  istrator  of  the  lunatic  will,  in  such 
permitted  to  make  such  amendment  in  case,  be  substituted  as  complainant  in 
the  bill  or  bills  of  complaint  as  his,  the  Court  of  Chancery,  in  place  of  the 
her  or  their  title  or  interest  therein  guardian.  Creveling  v.  Karr,  2  N.  J. 
may  require,  and  upon  such  terms  as  L.  J.  119. 


318  FORMS   OF   PLEADINGS. 

things,  he  appointed  his  executor,  who  has  taken  upon 

himself  the  burthen  of  the  execution  thereof,  *  (or  state  the  facts, 
ag  the  case  may  be:)  It  is,  on  this,  &c.,  ordered,  that  the  said 
{the  executor),  be  and  he  is  hereby  inserted  as  complainant  in  this 
suit;  and  that  the  said  suit  stand  revived  and  continued  in  the 
name  of  the  said  ,  as  executor  of  said  ,  deceased. 

And  it  is  further  ordered,  that  he  be  permitted  to  amend  the 
bill  of  complaint  herein,  as  his  interest  may  require. 

Order  by  defendant  on  representative  of  sole  com- 
plainant, deceased,  to  revive. 

{Title  of  cause.) 
It  appearing  to  the  court  that  the  complainant  has  died  leav- 
ing a  last  will,  &c.,  which  has  been  duly  admitted  to  probate 
and  letters  testamentary  thereon  granted  to  ,  executor  in 

said  will  named,  who  has  taken  upon  himself  the  burthen  of  the 
execution  thereof,  and  that  the  said  {the  executor)  has  neglected  to 
have  himself  inserted  as  complainant  herein :  It  is,  &c.,  ordered, 
that  the  said  {the  executor)  cause  himself  to  be  inserted  as  com- 
plainant in  this  suit  in  the  place  of  the  complainant,  , 
deceased,  within  days  after  service  upon  him  of  a  copy  of 
this  order,  and  that  he  be  permitted  to  make  such  amendment 
in  the  bill  of  complaint  as  his  title  or  interest  may  require,  upon 
such  terms  as  the  court  may  direct;  and  that  on  his  failure  so  to 
have  himself  inserted  as  complainant  as  aforesaid,  the  bill  of 
complaint  in  this  cause  be  dismissed. 

Order  on  motion  of  representative  of  deceased  co- 
complainant  to  be  inserted  as  a  party. (a) 

It  appearing  by  affidavit  that  ,  one  of  the  complainants 

in  this  suit,  has  died  *  intestate  and  that  has  been  duly 

(a)  Any  executor  or  administrator  either  before  or  after  decree ;  provided, 

appointed    by     letters     obtained    in  that   on  making  the   application   he 

another  state  or   territory,  or  in  the  file  in  the  suit,  in  the  office  of  the 

District  of  Columbia,  may,  on  his  ap-  clerk,    an    exemplified   copy    of   the 

plication,  become  a  party  complainant  record  of  his  appointment.    Paraph. 

in   place  of  his  testator  or  intestate,  L.,  18S8,  jo.  473. 


ABA.TEMENT   AND   REVIVOR.  319 

appointed  administrator  of  his  estate,  {or  after  *,)  leaving  a  last 
will  and  testament,  whereby  he  appointed  the  executor 

thereof,  and  that  said  will  has  been  duly  probated  and  said 
has  duly  qualified  as  such  executor :  It  is,  on  this,  &c.,  ordered, 
that  said  be  inserted  as  a  complainant  herein,  and  that  he 

be  permitted  to  make  such  amendment  to  the  bill  of  complaint 
as  his  interest  may  require. 

Order  that  suit  be  revived  against  the  represen- 
tative of  deceased  sole  defendant.(o) 

{Title  of  cause.) 
As  in  first  form  on  page  316,  to  *,  using  the  word  "defendant" 
instead  of  " complainant"  then  add,  " and  that  said  executor  has 
not  applied  to  be  made  defendant  herein  in  the  place  of  said 
testator :  It  is,  &c.,  ordered,  that  this  suit  stand  revived,  and 
that  {the  representative)  be  made  defendant  in  this  suit,  and  that 
he  do,  within  days  from  the  date  of  service  upon  him  of  a 

copy  of  this  order,  appear  and  put  in  his  answer  or  signify  his 
disclaimer  of  this  suit,  and  the  matters  in  controversy  therein ; 
and  in  default  thereof,  that  the  complainant  enter  his  appearance 
to  this  suit,"  *  {in  case  the  decedent  party  has  not  answered,  and 

(a)  If  in  any  such  suit  in  which  of  such  party,  shall,  within  such  time 

there  was,  is  or  shall  be  but  one  de-  after  service  as  aforesaid  as  the  court 

fendant,  and  the  said  defendant  has  shall  limit  and   appoint,  appear  and 

died,  or  shall  die,  and  the  plaintiff  or  put  in  their  answer,  or  signify  their 

plaintiffs  choose  to  make  the  repre-  disclaimer  of  the  suit,  and  the  matters 

sentative    or    representatives   of    the  in  controversy  therein,  the  plaintiff  or 

deceased  party,  or  others  who  have  or  plaintiffs  may  cause  his  or  their  ap- 

may  become  interested  by  the  death  pearance  to  be  entered,  and  in  such 

of  such  decedent,  parties  to  such  suit,  case  the  answer  of  the  deceased  party, 

no  bill  of  revivor  or  subpoena  ad  re-  if  any  there  be,  shall  be  deemed  and 

vivendmi  shall  be  necessary ;  but  the  taken  as  and  for  the  answer  of  such 

court  shall  and  may,  by  rule  or  order,  representative   or   representatives,  or 

as  often  as  there  shall  be  occasion  for  otlier  person  or  persons  interested  by 

it,  direct   the  suit   to  stand  revived,  the   death  of  such   party;  and   such 

which  rule  or  order  shall  be  served  as  further  proceedings  may  and  shall  be 

the  court  may  direct;  and  unless  the  had  in  the  said  suit  as  are  according 

representative    or   representatives   of  to  equity  and  the  rules  and  practice  of 

such  deceased  party,  or  others  who  the  said  court,  Bev.,  "Abatement,"  I  7. 
may  become  interested  by  the  death 


320 


FORMS   OF   PLEADINGS. 


the  time  for  answering  expired  in  the  lifetime  of  the  deceased 
defendant,  add,  "  and  that  the  bill  of  complaint  be  taken  as  con- 
fessed against  the  said  ,  to  the  end  that,"  &g.,  (conclude  as 
in  decree  pro  confesso  ;)  or,  if  the  deceased  party  has  answered, 
and  no  further  answer  is  required,  after  *  add,  "  and  that  the 
answer  of  the  said  ,  now  deceased,  to  the  bill  of  complaint 
herein,  be  deemed  and  taken  as  and  for  the  answer  of  the  said 
"  {the  representative.) 


Order  that  suit  stand  revived  against  the  repre- 
sentative of  a  deceased  co-complainant.(a) 

( Title  of  cause.) 

It  appearing,  &c.,  that  ,  one  of  the  complainants,  &c., 

departed  his  life,  &c. :   It  is,  on  this,  &c.,  ordered,  that  the  said 
{representative)  do,  within  days  after  service  upon  him  of 

a  copy  hereof,  cause  himself  to  be  entered  as  a  complainant  in 
this  suit  in  the  place  of  the  said  {deceased  complainant ;)  and 


(a)  And  if  any  plaintiff  or  plain- 
tifls,  in  any  suit  now  depending  or 
hereafter  to  be  brought,  wherein  the 
cause  of  action  does  not  survive  as 
aforesaid,  happen  to  die  pending  such 
suit,  the  lawful  representative  or  rep- 
resentatives of  such  deceased  plain- 
tiff or  plaintiffs,  or  any  other  person 
or  persons  interested  by  the  death  of 
such  plaintiff  or  plaintiffs,  shall  and 
may,  upon  affidavit  thereof  by  him, 
her  or  them,  or  any  other  person  or 
persons,  and  on  motion  made  in  court, 
be,  by  the  rule  or  order  of  the  court, 
inserted  as  a  complainant  or  com- 
plainants in  the  said  suit,  and  be  per- 
mitted to  make  such  amendment  in 
the  bill  or  bills  of  complaint  as  his, 
her  or  their  title  or  interest  therein 
may  require,  to  which  amendment  or 
amendments  the  defendant  or  defend- 
ants shall  be  compellable,  by  rule  or 
order  of  the  said  court,  to  answer, 
proceed  to  issue  and  examination  of 


witnesses  and  production  of  proofs, 
and  all  other  proceedings  shall  be  had 
thereon  as  in  ordinary  cases  ;  and  in 
case  such  person  or  persons  shall  not, 
within  such  time  after  the  death  of 
such  plaintiff  or  plaintiffs  as  the  court 
shall  limit  and  appoint,  cause  himself, 
herself  or  themselves  to  be  entered  as 
plaintiff  or  plaintiffs,  in  the  room  of 
such  deceased  plaintiff  or  plaintiffs, 
then,  and  in  every  such  case,  the  sur- 
viving plaintiff  or  plaintiffs  may  in- 
sert the  representative  or  representa- 
tives of  such  deceased  plaintiff  or 
plaintiffs,  or  other  person  or  persons 
interested  by  his,  her  or  their  death, 
as  defendant  or  defendants  in  such 
suit,  and  proceed  in  the  manner  here- 
inbefore directed  in  cases  where  the 
lawful  representative  or  representa- 
tives of  a  deceased  defendant  or  de- 
fendants may  be  made  party  or  parties. 
Rev.,  ^^ Abatement"  §  5. 


ABATEMENT   AND   REVIVOR.  321 

that  on  his  failure  so  to  do,  the  surviving  complainant  insert 
the  said  [representative)  as  a  defendant ;  and  that  this  suit  stand 
revived,  and  that  such  further  proceedings  be  had  therein  as  are 
according  to  equity  and  the  rules  and  practice  of  this  court. (a) 

An  order  to  dismiss  bill  on  failure  of  representa- 
tive of  sole  complainant  to  revive.(6) 

(Title  of  cause.) 

An  order  having  been  heretofore  made  in  the  above- entitled 
suit,  that  [the  executor)  do,  within  days  after  service  upon 

him  of  a  copy  thereof,  cause  himself  to  be  inserted  as  complain- 
ant in  this  suit  in  the  place  of  the  complainant,  ,  now 
deceased,  and  that  he  be  permitted  to  amend  the  bill  of  com- 
plaint, &c.,  and  it  appearing  to  the  court  that  the  said  (the  exec- 
utor) has  been  served  with  a  copy  of  said  order  and  that  he  has 
neglected  to  have  himself  inserted  as  complainant,  pursuant  to 
said  order,  within  the  time  limited  thereby,  (or  at  any  other 
time :)  It  is  thereupon,  on  this,  &c.,  ordered,  that  the  bill  of 
complaint  in  this  cause  be  and  the  same  is  hereby  dismissed. 

(a)  In  case  of  the  death  of  any  sole  court  shall  limit  and  appoint  for  that 

plaintiff,  if  his  lawful  representative  purpose,  then,  and  in  every  such  case 

or  representatives,  or  such  other  per-  the  said  suit  shall  be  considered  as  at 

son  or  persons  as  shall  become  inter-  an  end,  and  shall  not  be  revived  in 

ested  by  his  death,  shall  not,  within  the  manner  provided  for  by  this  act. 

such  time  as  the  court  may  limit  and  liev.,  "Abatement,"  ^   8.    Where  after 

appoint  for  that  purpose,  cause  him-  an   injunction   had   issued,  defendant 

self,  herself  or  themselves  to  be  entered  died  and  complainant  had  not  revived 

as  complainant  or  complainants  in  the  the  suit,  the  proper  proceeding  is  by 

said  suit,  in  the  room  of  such  deceased  order  that  complainant  revive  within, 

plaintiff,  or  in  case  of  the  death  of  any  a  specified  time,  or  that  the  injunction 

sole    defendant,    if    the    plaintiff   or  be  dissolved.     Cummins  v.  Cummins, 

plaintiffs  shall  not  make  the  represen-  4  Hal.  Ch.  173. 

tative   or   representatives   of  the   de-  (6)  For  practice   to  revive  a  suit 

ceased  defendant,  or  others  who  may  where  an  administrator  having  letters 

have  become  interested  by  the  death  pendente  lite  or  other  limited  adminis- 

of  such  decedent,  party  or  parties  to  tration  is  a  party,  and  such  administra- 

such  suit,  and  cause  the  said  suit  to  tion   has   terminated,  see  Pamph.  L., 

stand  revived  within  such  time  as  the  1890,  p.  14. 


322  FORMS   OF  PLEADINGS. 

PROCEEDINGS  IN  THE  NATURE  OF  SCIRE 
FACIAS. 

Petition  for  writ  of  scire  facias. (a) 

In  Chancery  of  New  Jersey. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey  : 

The  petition  of  ,  sole  executrix  of  the  last  will  and  tes- 

tament of  ,  deceased,  of  ,  in  the  county  of  , 

and  State  of  New  Jersey,  respectfully  shows,  that  on  or  about 
the  day  of  ,  in  the  year,  &c.,  the  said  ,  the 

late  husband  of  your  petitioner,  filed  his  bill  of  complaint  in 
this  honorable  court  against  and  others,  to  foreclose  a  cer- 

tain mortgage  made  and  executed  by  said  to  one  , 

and  bearing  date  the  day  of  ,  eighteen  hundred  and 

,  upon  lands  in  the  city  of  ,  to  secure  the  sum  of 

dollars;    which    said    mortgage   was,  on    or   about   the 
day  of  ,  eighteen  hundred  and  ,  duly  assigned 

by  the  said  to  the  said  ,  and  said  assignment  duly 

recorded  in  the  clerk's  office  of  the  county  of  ,  in  Book 

of  Mortgages,  page  ;  that  thereupon  such  proceed- 

ings were  had  in  said  suit,  that  on  the  day  of  , 

(a)  Execution  may  issue,  without  a  proceeding  indicated   above.     In  all 

revival   of  the   decree,  at  any   time  cases  not   within  the  proviso  of  the 

within  twenty  years  from  the  date  of  one   hundred   and   tenth   section,   an 

such  decree;  provided,  the  parties  to  original  bill,  in  the  nature  of  a  bill  of 

the  decree,  or  those  of  them  during  revivor  or  a  supplemental  bill,  would 

whose  lives  execution  may  now  issue  be    the    apj^ropriate    proceeding.      2 

without  a  revival,  be  then  living.     If  Dan.  Ch.  Pr.  1545 ;  Peer  v.  Cookerow, 

more   than   six    years   have  elapsed  2  5eas.  136;  Lyons  v.  Van  Piper,  11 

since  the   entering   of  the  decree,   a  C.  E.  Gr.  337.     Unless  the  suit  can  be 

special   order  of  the  court  shall   be  revived  under  rule  210.    The  statutory 

necessary  before  the  execution  issue,  provisions  on  the  subject  of  abatement 

to  be  made  upon  ten  days'  notice  to  are  confined  to  suits  which  have  been 

the    defendant     of    the    application  abated  by  the  death  of  a  part}',  and 

therefor,  and  proof  to  the  satisfaction  only  extend  to  those  cases  where,  by 

of  the  court  of  the  amount  remaining  the  former  practice,  the  proceedings 

due  upon  the  decree.     Per.,  "  Chan-  could  be  revived  and  continued  by  a 

eery,"  ^  110.     The  former  practice  by  simple   bill  of  revivor.     Douglass  v. 

scire  facias  has  been  superseded  by  the  Sherman,  2  Paige  358. 


SCIEE   FACIAS.  323 

eighteen  hundred  and  ,  a  final  decree  was  made  and  filed 

therein;  whereby  it  was  ordered,  adjudged  and  decreed  that  cer- 
tain mortgaged  premises  in  the  bill  of  complaint  in  said  cause 
described,  with  the  appurtenances,  be  sold  to  raise  and  satisfy 
the  sum  of  dollars  due  to  the  said  ,  the  complainant, 

together  with  interest  thereon  from  the  day  of 

eighteen  hundred  and  ,  and  his  costs  to  be  taxed,  and  that 

a  writ  of  fieri  facias  should  issue  for  that  purpose  out  of  this 
court,  directed  to  the  sheriff  of  the  county  of  ,  command- 

ing him  to  make  sale  accjrding  to  law  of  the  said  mortgaged 
premises. 

And  your  petitioner  further  shows,  that  no  writ  of  fieri  facias 
has  issued  out  of  this  court  in  pursuance  of  the  decree  aforesaid. 

And  your  petitioner  further  shows,  that  on  or  about  the 
day  of  ,  eighteen   hundred   and  ,  the   said 

departed  this  life,  having  first  made  and  executed  his  last  will 
and  testament,  in  writing,  wherein  and  whereby,  among  other 
things,  he  appointed  your  petitioner  the  executrix  thereof;  and 
that  afterwards  your  petitioner  duly  proved  said  will  before  the 
surrogate  of  the  county  of  . ,  as  by  the  letters  testamentary 

will  appear. 

And  your  petitioner  further  shows,  that  said  left  him 

surviving,  besides  your  petitioner,  his  wife,  the  following-named 
child,  to  wit,  ;  and  that  the  said  is  an  infant  under 

the  age  of  twenty- one  years. 

And  your  petitioner  further  shows,  that  the  said  sum  of 
dollars,  together  with   interest  thereon  from  the  day  of 

,  eighteen  hundred  and  ,  is  wholly  unpaid  and  unsat- 

isfied, and  your  petitioner  is  entitled  to  have  a  writ  of  fieri  facias 
issued  out  of  this  court,  pursuant  to  the  said  decree ;  but  your 
petitioner  is  informed  that,  by  reason  of  the  death  of  the  said 
,  no  writ  of  fieri  facias  can  be  issued  in  his  name,  but 
that  said  decree  must  first  be  revived  in  the  name  of  his  exec- 
utor, or  some  order  of  the  court  made  to  enable  her  to  procure 
said  writ. 

Your  petitioner  therefore  prays,  that  an  order  be  made  by 
this  honorable  court  for  a  writ  of  fieri  facias  to  issue  pursuant 


324  FORMS   OF   PLEADINGS. 

to  the  said  decree,  or  that  such  other  order  may  be  made  in  the 
premises  as  to  your  Honor  shall  seem  meet. 
And  your  petitioner  will  ever  pray,  &c. 

{Signature  of  solicitor.) 

Affidavit  of  verification. 

State  of  New  Jersey, 

county  of  , 

,  the  petitioner  named  in  the  foregoing  petition,  being 
duly  sworn  according  to  law,  says — that  the  matters  and  things 
set  forth  in  said  petition,  so  far  as  relates  to  her  acts  and  deeds, 
are  true,  and  so  far  as  relates  to  the  acts  and  deeds  of  others,  she 
believes  them  to  be  true ;  and  she  further  says  that  the  state- 
ments in  said  petition  as  to  the  death  of  said  ,  and  her 
right  to  represent  her  estate,  are  true ;  and  that  no  part  of  the 
moneys  mentioned  in  the  decree  set  forth  in  said  petition,  has 
been  paid  to  her  since  the  death  of  her  husband ;  and  that  to 
the  best  of  her  knowledge  and  belief,  the  said  moneys  have 
never  been  paid  either  to  the  said  ,  in  his  lifetime,  or  to 
any  other  person  or  persons;  and  that  the  amount  of  said 
decree  is  still  unpaid. 

Sworn,  &c. 

Order  to  show  cause  upon  foregoing  petition. (a) 

{Title  of  cause.) 
Upon  opening  the  matter  in  this  cause  to  the  court,  and  it 
appearing  by  the  petition  of  filed  herein,  that  by  a  certain 

(a)  An  order  to  show  cause  will  not  served  on  the  opposite  party,  and  the 

be  necessary,  if  the  application  for  the  parties  are  heard  upon  affidavits.    The 

execution  be  made  within  six  years  petition  itself  is  no  evidence  of  the 

from  the  date  of  the  decree ;  but  an  facts  stated  in  it.     They  must  all  be 

order  for  the  writ  may  be  made  upon  proved   aliunde.    Carpenter    v.  Much- 

the  presentation  of  the  petition,  duly  more,   2    McCart.   123 ;    Dinsmore  v. 

verified    to    the    satisfaction    of   the  Westcott,  10  C.  E.  Gr.  305.    No  answer 

court.     See  Claflin  v.  Voorhees,  6  Vr.  to  the  petition  is  required.    See  Crane 

484 ;  Pears  v.  Bache,  Coxe  208.   When  v.  Brigham,  3  Slock.  29. 

a  petition  is  presented,  and  an  adverse  Affidavits  and  petitions  duly  sworn 

party  has  a  right  to  be  heard  in  oppo-  to  on  which  orders  to  show  cause  may 

sition,  the  usual  proceeding  is  to  take  be  granted,  if  served  as  affidavits,  may 

an  order  fixing  a  day  for  the  hearing.  be  used  on  the  hearing  of  the  order  to 

Copies  of  the  petition  and  order  are  show  cause.    Rule  138, 


SCIRE   FACIAS.  325 

fioal  decree  made  in  this  cause,  it  was  ordered,  adjudged  and 
decreed,  that  so  much  of  certain  mortgaged  premises  mentioned 
in  the  bill  of  complaint  as  should  be  necessary  for  the  purpose, 
should  be  sold,  to  pay  the  above-named  complainant  the  debt, 
interest  and  costs  mentioned  in  said  decree,  and  that  a  writ 
of  fieri  facias  should  issue  to  the  sheriff  of  the  county  of  , 

commanding  him  to  make  sale  of  the  said  mortgaged  premises 
for  that  purpose. 

And  it  further  appearing  that  no  writ  of  fieri  facias  has  been 
issued,  pursuant  to  the  said  decree,  it  is  thereupon,  on  this,  &c., 
on  motion  of  ,  of  counsel  with  the  complainant,  ordered, 

that  the  said  defendants  show  cause  on  ,  the  day  of 

next,  at,  &c.,  why  a  writ  of  fieri  facias  should  not  issue 
upon  the  said  decree,  pursuant  to  the  statute  in  such  case  made 
and  provided. 

Order  for  execution  to  issue.(a) 
( 2itle  of  cause.) 

Upon  opening  the  matter  to  the  court  by  ,  solicitor  for 

and  of  counsel  with  the  complainant,  and  it  appearing  that  the 
order  to  show  cause  heretofore  granted  in  the  petition  of  said 
complaiaant  has  been  duly  served  upon  the  said  defendant,  pur- 
suant to  said  order,  and  no  cause  being  shown  or  appearing  to 
the  contrary :    It  is,  on  this  day  of  ,  in  the  year, 

&c.,  ordered,  adjudged  and  decreed,  that  a  writ  of  fieri  facias  do 
issue,  directed  to  the  sheriff  of  the  said  county  of  ,  com- 

manding him  to  make  sale  of  so  much  of  the  mortgaged  prem- 
ises mentioned  in  the  final  decree  in  this  cause,  as  will  be  sufficient 
to  satisfy  the  debt,  interest  and  costs  of  the  said  complainant  in 
the  said  decree  mentioned,  according  to  the  force,  form  and  effect 
of  the  said  decree  and  of  the  statute  in  such  case  made  and  pro- 
vided, and  also  the  costs  thereof. 

(a)  The  execution   is  in  the  same  v.    Wood,    Coxe    118),    and    may    be 

form  as  that  on  an  original  decree.  A  amended.     Condit  v.  Gregory,  1  Zab. 

scire  facias  may  issue  where  an  execu-  429. 
tion  has  been  partly  satisfied,  {Stelle 


326 


FORMS   OF   PLEADINGS. 


OF    THE    DIFFERENT    KINDS    OF    BILLS    AND 
PROCEEDINGS   THEREON. 

A  short  form  of  foreclosure  bill.(a) 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey  : 

Your  orator,  ,  of  the  township  of  ,  in  the  county 

of  ,  and  State  of  New  Jersey,  complaining,  shows  : 


(a)  The  object  of  a  bill  of  fore- 
closure is  to  enable  the  mortgagee  to 
have  the  mortgaged  premises  sold  in 
order  to  get  his  mortgage  money  and 
interest,  or  that  the  mortgagor  may 
redeem  it  without  delay,  and  in  de- 
fault thereof,  that  the  mortgagor  and 
all  persons  claiming  under  him,  or  to 
claim  from  or  under  him,  be  forever 
barred  of  and  from  all  equity  of 
redemption  in  the  mortgaged  prem- 
ises. Blake  Ch.  Pr.  56.  It  is  pro- 
vided by  statute  that  when  a  bill 
shall  be  filed  for  the  foreclosure  or 
satisfaction  of  any  mortgage,  it  shall 
be  lawful  for  the  Court  of  Chancery 
to  decree  a  sale  of  the  mortgaged 
premises,  or  such  part  thereof  as  shall 
be  sufficient  to  discharge  the  said 
mortgage  or  encumbrances  thereon, 
besides  costs;  the  sale  to  be  made 
either  by  one  of  the  masters  of  the 
court,  or  by  the  sheriff  of  the  county 
where  the  premises  are  situate  Rev., 
"Chancery,"  §  71.  The  first  business 
of  the  solicitor,  when  a  bond  and 
mortgage  are  placed  in  his  hands  for 
collection,  is  to  ascertain,  by  searches 
in  the  proper  offices,  whether  the 
mortgaged  premises  remain  the  prop- 
erty of  the  mortgagor,  and  if  not,  to 
ascertain  who  have  successively  be- 
come the  owners  thereof,  and  whether, 
by  their  deeds,  any  of  the  grantors 
have  assumed  payment  of  the  mort- 
gage ;  and  also  whether  the  mortgagor 


or  his  grantee,  or  any  prior  or  inter- 
mediate owner,  has  given  any  mort- 
gage on  the  same  property,  and  if  any, 
whether  they  remain  uncanceled  of 
record;  and  also  whether  any  judg- 
ments or  other  liens  have  been  ob- 
tained against  the  mortgagor  or  any 
prior  owner,  which  operate  as  existing 
liens  on  the  property.  Under  some 
circumstances,  it  will  be  prudent  to 
ascertain  whether  there  are  any  out- 
standing claims  against  the  property 
for  unpaid  assessments  and  taxes ; 
also  to  ascertain  whether  the  owner 
be  married  or  single ;  if  he  be  dead, 
who  are  his  heirs,  and  what  are  their 
ages ;  and  if  he  left  a  last  will  and 
testament,  what  are  its  provisions  as 
affecting  the  land  covered  by  the 
mortgage ;  he  must  also  examine  the 
conveyances  and  mortgages  critically, 
to  ascertain  the  nature  of  the  estates 
conveyed  thereby,  so  as  to  be  able  to 
set  forth  with  exactness  the  whole 
history  of  the  property,  as  far  as 
necessary,  in  his  bill,  and  to  bring  all 
the  proper  parties  before  the  court, 
and  to  state  the  nature  of  their  several 
interests.  Everything,  therefore,  that 
suggests  itself  to  the  solicitor  in  pre- 
paring an  abstract  of  title,  whether  it 
be  matter  of  record  or  not,  afiecting 
the  title  to  the  property  should  be 
considered  in  preparing  a  memoran- 
dum for  the  purpose  of  drawing  a  bill 
of  foreclosure. 


FORECLOSURE.  327 

1.  That  on  the  day  of  ,  in  the  year  eighteen 
hundred  and  ,  ,  being  indebted  to  in  the 
sum  of  dollars,  by  his  bond,  dated  on  that  day,  became 
bound  to  said  in  the  sum  of  dollars,  to  be  paid  to 
him,  his  executors,  administrators  or  assigns,  with  a  condition 
thereunder  written,  that  if  the  said               should,  in 

years  from  the  date  thereof,  pay  to  the  said  ,  his  executors, 

administrators  or  assigns,  said  sum  of  dollars,  with  interest 

at  the  rate  of  per  cent,  per  annum,  payable  half  yearly, 

then  that  bond  should  be  void. 

2.  That  in  said  bond  it  was  declared  to  be  agreed  between  the 
parties  thereto,  that  if  said  interest,  or  any  part  thereof,  should 
not  be  paid  within  thirty  days  after  the  same  should  become 
due,  then  the  whole  of  the  principal  sum  mentioned  in  the  con- 
dition should  be  immediately  due,  at  the  option  of  said  , 
his  executors,  administrators  and  assigns. 

3.  That  to  secure  the  payment  of  said  dollars,  with 
interest,  the  said  ,  and  ,  his  wife,  by  a  deed  of 
mortgage  bearing  date  on  the  same  day  as  said  bond,  conveyed 
to  said  ,  and  his  heirs  and  assigns  forever,  in  fee  simple, 
that  tract  or  parcel  of  land  [here  insert  description,  d'G.) 

4.  That  said  mortgage  contained  a  proviso  that  it  should  be 
void  upon  payment  of  said  sum  of  dollars,  with  interest 
according  to  the  condition  of  said  bond. 

5.  That  said  mortgage  contained  an  agreement  of  the  same 
effect  as  that  in  said  bond  above  set  forth  in  paragraph  2,  that 
the  whole  of  the  principal  should  become  due  if  any  part  of  the 
interest  due  remained  unpaid  for  thirty  days. 

It  is  lawful  for  the  clerk  to  tax,  as  provided    also,   that    the    ma&ter    to 

a  part  of  the  taxable  costs,  the  ex-  whom  it  shall  be  referred  to  ascertain 

penses  paid  or  incurred  by  the  com-  the  amount  due  upon  the  mortgage 

plainant   in   obtaining   certificates   of  shall,  in  his  report,  also  certify  that, 

search  in  any  of  the  courts  or  public  in   his   opinion,   such    certificates  of 

offices  of  the  state  against  or  in  rela-  search  were  necessary  for  the  proper 

tion   to   the   title   of  the   mortgaged  foreclosure   of   the   mortgage.     Bev., 

premises;  provided,  the  person  mak-  "Chancery,"  I  79,  p.  1274;  amended 

ing   the  search   shall   certify  on   the  by  ^  121,  p.  121 . 
same  the  amount  of  such  expenses; 


328  FORMS  OF   PLEADINGS. 

6.  That  said  mortgage  was,  on  the  day  of  , 
eighteen  hundred  and  ,  duly  recorded  (or  "  registered  ") 
in  the  office  of  the  clerk  (or  "  register  ")  of  the  county  of  , 
in  Book  of  Mortgages,  page  ,  the  execution  of  the 
same  having  been  first  duly  acknowledged,  and  such  acknowledg- 
ment certified  thereon,  as  required  by  law. 

7.  That  the  said  ,  on  the  day  of  ,  eighteen 
hundred  and  ,  by  writing,  under  his  hand  and  seal,  dated 
on  that  day,  assigned  said  bond  and  mortgage  to  ,  who 
afterwards,  on  the             day  of            ,  eighteen  hundred  and 

,  by  writing,  under  his  hand  and  seal,  dated  on  that  day, 
assigned  the  same  to  your  orator. 

8.  That  said  bond  and  mortgage  and  said  two  assignments, 
to  which  your  orator  refers  for  certainty,  are  in  his  possession, 
ready  to  be  produced  and  proved. 

9.  That  the  said  ,  on  the  day  of  ,  eighteen 
hundred  and  ,  mortgaged  said  lands  to  to  secure 
the  payment  of  dollars,  with  interest,  which  mortgage 
was,  on  the  day  of  ,  eighteen  hundred  and  , 
recorded  in  said  clerk's  {or  "register's")  office,  in  Book  , 
page 

10.  That  the  said  ,  on  the  day  of  ,  eighteen 
hundred  and  ,  mortgaged  said  lands  to  ,  to  secure 
the  payment  of  dollars,  with  interest,  which  mortgage  was, 
on  the  day  of  the  date  thereof,  registered  in  said  clerk's  {or 
"register's")  office,  in  Book             of  Mortgages,  page 

11.  That  on  the  day  of  ,  eighteen  hundred  and 

,  recovered  a  judgment  in  the  Supreme  Court  of 

this  state  against  said  ,  for  dollars. 

12.  That  on  the  day  of  ,  eighteen  hundred  and 

,  recovered  a  judgment  against  in 

County  Circuit  Court,  for  dollars. 

13.  That  said  two  mortgages  and  said  two  judgments,  men- 
tioned in  paragraphs  9,  10,  11  and  12  are  uncanceled  and  un- 
satisfied of  record,  and  are  claimed  to  be  subsisting  liens  on  said 
premises  mortgaged  to  ;  but  your  orator  shows  and  insists 
that  they  were  severally  executed,  recorded  or  registered,  and 


FORECLOSURE.  329 

assigned  subsequent  to  the  execution  and  recording  (or  "regis- 
try ")  of  said  mortgage  to  ,  and  the  said  mortgage  is  a 
prior  lien  on  the  premises  therein  mortgaged. 

14.  That  said  and  ,  his  wife,  on  the  day 
of  ,  eighteen  hundred  and  ,  by  their  deed  dated  on 
that  day,  conveyed  said  mortgaged  premises  in  fee  to  , 
which  deed  was  accepted  by  said  ;  and  that  it  was  stipu- 
lated in  said  deed  that  said  lands  were  conveyed  subject  to  said 
mortgage. 

15.  That  on  the  day  of  ,  eighteen  hundred  and 

,  dollars,  being  months'  interest  on  the  prin- 

cipal sum  of  dollars  secured  by  said  bond  and  mortgage 

given  by  to  ,  became  due,  and  that  the  same  has 

not  been  paid,  and  has  remained  unpaid  for  more  than  thirty 
days  after  the  same  became  due,  and  your  orator  has  elected, 
and  hereby  elects,  that  the  whole  of  said  principal  shall  be  due. 

16.  That  the  whole  of  said  principal  sum  of  dollars, 
with  interest  thereon  from  the  .  day  of  ,  eighteen 
hundred  and             ,  is  due  and  payable  to  your  orator. 

17.  That  said  have  not,  nor  has  your  orator  ever  had 
possession  of  said  mortgaged  premises,  or  received  any  of  the 
rents  or  issues  thereof. 

18.  That  your  orator  has  requested  said  and  , 
his  wife,  to  pay  him  said  principal  and  interest  so  due  on  said 
bond  and  mortgage,  with  which  request  they  have  refused  and 
neglected  to  comply. 

In  consideration  whereof,  and  inasmuch  as  your  orator  is 
remediless  in  the  premises  in  the  courts  of  law,  and  can  only 
have  adequate  relief  in  a  court  of  equity,  and  to  the  end — 

1.  That  the  defendants,  and  each  of  them,  may  answer,  upon 
their  respective  oaths  or  affirmations,  according  to  the  best  of  their 
respective  knowledge,  information  and  belief,  all  and  singular  the 
premises  and  each  fact  above  stated. 

2.  That  an  account  may  be  taken,  under  the  direction  of  this 
court,  of  the  amount  due  upon  your  orator's  said  mortgage. 

3.  That  the  defendants,  or  some  of  them,  may  be  decreed  to 
pay  unto  your  orator  the  amount  so  found  due,  with  interest 


330  FORMS   OF   PLEADINGS. 

thereon,  and  your  orator's  costs  in  this  suit,  by  a  short  day,  to 
be  appointed  by  this  court;  and  that  in  default  thereof,  they, 
and  each  of  them,  do  stand  debarred  and  foreclosed  of  all  equity 
of  redemption  in  said  mortgaged  premises. 

4.  That  said  premises  may  be  sold  by  the  order  of  this  court, 
and  out  of  the  proceeds  of  sale  your  orator  may  be  paid  the 
amount  so  found  due  upon  his  said  mortgage,  with  interest 
thereon,  and  his  costs  of  this  suit. 

And  that  your  orator  may  have  such  further  or  other  relief 
as  the  nature  of  his  case  requires,  and  as  may  be  agreeable  to 
equity. 

May  it  please  your  Honor  to  grant  unto  your  orator  the  state's 
writ  of  subpoena,  issuing  out  and  under  the  seal  of  this  court,  to 
be  directed  to  the  said  and  and  ,  his  wife, 

commanding  them  to  appear  before  your  Honor  in  this  court, 
then  and  there  to  answer  the  premises  and  to  stand  to,  abide  by 
and  perform  such  order  and  decree  as  your  Honor  shall  make 
therein. 

Affidavit  where  Christian  name  of  married  woman 
is  not  known.(a) 

State  of  New  Jersey,    \ 

y  SS» 

county  of  ,    J 

,  the  complainant  {or,  "  the  solicitor  of  the  complain- 
ant") in  the  above-stated  cause,  being  duly  sworn,  &c.,  says — 

(a)  AVhere,  in  any  suit,  it  shall  be  so  designated  in  any  suit,  may  appear 
thought  necessary  or  proper  to  make  and  plead,  answer  or  demur,  either  by 
any  married  woman  a  party,  and  it  the  name  by  which  she  shall  have 
shall  appear  by  the  affidavit  of  the  been  made  a  party,  or  by  her  own 
complainant,  or  his  or  her  solicitor.  Christian  name;  but  if  by  the  latter, 
annexed  to  the  bill  of  complaint  and  she  shall  also  state  the  name  by  which 
filed  therewith,  that,  notwithstanding  she  was  made  a  party.  All  proceed- 
due  inquiry  has  been  made  therefor,  ings  had  or  taken  in  any  suit  against 
the  Christian  name  of  such  married  any  married  woman  who  shall  have 
woman  cannot  be  ascertained,  it  will  been  made  a  party  as  aforesaid,  shall 
be  lawful  and  sufficient  to  designate  be  as  valid,  binding  and  conclusive  as 
any  such  married  woman  by  the  they  would  have  been  had  she  been 
name  of  her  husband,  with  "Mrs."  made  a  party  by  her  own  Christian 
prefixed  thereto.   Any  married  woman  name.     Bev, '^  Chancery,"  ^^  10-12. 


FORECLOSURE. 


331 


that  the  wife  of  ,  one  of  the  defendants  in  said  suit,  is 

a  necessary  {or  "proper")  party  therein  ;  and  that  notwithstand- 
ing due  inquiry  has  been  made  therefor,  the  Christian  name  of 
such  married  woman  cannot  be  ascertained.  [Signature.) 

Sworn,  &c. 

Form  of  bill  to  foreclose  in  a  complicated  case. (a) 
{Address.) 

Complaining,  show   unto  your  Honor  your  orators, 
and  ,  executors  of  the  last  will  and  testament  of  , 


(«)  Of  parties  complainant.  In 
determining  who  are  tlie  proper  and 
necessary  parties  to  a  bill  to  foreclose 
a  mortgage,  two  fundamental  princi- 
ples in  all  proceedings  in  equity  must 
be  kept  in  view — first,  that  no  one 
shall  be  deprived  of  his  rights  except 
he  is  before  the  court;  and  second, 
that  the  rights  of  all  persons  inter- 
ested in  the  object  of  the  suit  should 
be  provided  for  in  the  determination 
of  it.  Jones  on  Mortgages,  g  1367. 
McCall  V.  Yard,  3  Stock.  58;  Trades. 
Sav.  Bank  v.  Freese,  11  C.  E.  Or. 
453 ;  Vanderveer  v.  Holcomb,  2  C.  E. 
Gr.  87,  547  ;  Oould  v.  Wheeler,  1  Stew. 
Eq.  541.  If  the  mortgagee  is  the 
only  party  in  interest,  he  is,  of  course, 
the  only  complainant.  If  several 
persons  are  made  mortgagees,  or"  are 
entitled  to  the  mortgage  money,  all  of 
them  must  be  parties  to  the  suit, 
though  there  are  many  cases  in  which 
some  of  the  persons  so  interested  may 
properly  be  made  defendants.  Story's 
Eq.  PL,  'i  201.  When  a  person  hav- 
ing an  interest  in  the  security  is  made 
a  defendant  in  the  suit,  the  bill  ought 
to  show  his  refusal  to  join  as  a  com- 
plainant. Jones  on  Mortgages,  g  1369. 
If  a  mortgagee  has  assigned  the  mort- 
gage absolutely  to  a  third  person,  the 
mortgagee  is  not  a  necessary  or  proper 


party  to  the  foreclosure  suit.  But  if 
the  assignment  is  not  absolute,  then 
he  is  a  necessary  party.  Miller  v. 
Henderson,  2  Stock.  320.  An  assignee 
of  a  mortgage  as  collateral  security 
may  foreclose  the  mortgage,  but  the 
mortgagee  should  be  joined  with  him 
as  complainant.  In  such  a  case  he 
Avould  sue  in  his  own  right  and  as 
trustee  for  the  legal  owner.  If  the 
assignee  refuses  to  foreclose  and  the 
collateral  character  of  the  assignment 
appears  on  the  face  of  it,  the  assignor 
may  foreclose  in  his  own  name  and 
make  the  assignee  a  party  defendant. 
Jones  on  Mortgages,  ^  1375 ;  Ackerson 
V.  Lodi  Branch  B.  B.  Co.,  1  Stew.  Eq. 
542.  A  bond  and  mortgage  may  be 
assigned  by  writing  not  under  seal. 
McKinna  v.  Smith,  2  Gr.  Ch.  14; 
Mulford  v.  Peterson,  6  Vr.  127.  And 
by  mere  delivery  without  writing. 
Kamena  v  Huelbig,  8  (7.  E.  Gr.  78  ;^ 
Williamson  v.  N.  J.  S.  B.  B.  Co.,  1  Stew. 
Eq.  345.  It  is  a  general  rule  that 
where  there  is  a  bond  and  mortgage 
the  assignment  of  the  bond  operates 
as  an  assignment  of  the  mortgage. 
Stevenson  v.  Black,  Sax.  339.  The 
assignment  of  a  bond  and  mortgage 
duly  executed  is  prima  facie  evidence 
that  the  consideration  was  paid. 
Dwm   V.  Seymour,  3   Stock.   278.     A 


332 


FORMS   OF   PLEADINGS. 


late  of,  &c.,  deceased,  that  ,  late  of  ,  in  the  county 

and  state  aforesaid,  deceased,  being  indebted  to  the  said  , 

in  his  lifetime,  in  the  sum  of  dollars,  did  execute  and 


partner   who    holds    a    mortgage   as 
security  for  a  debt  due  the  partnership 
should  join  the  other   partners  with 
him  as  complainant  in  a  suit  to  fore- 
close it.     De  Grieff  v.  Wilson,  3  Steiv. 
Eg.  435;  Noyes  v.  Savage,  3  Vt.  160. 
It  is  a  general  rule  that  a  trustee  can- 
not bring  his  suit  in  his  own  name 
alone,  but  that  the  cestuk  que  trust 
must  be  associated  with  him.     Large 
V.  Va7i  Doren,  1  McCart.  208;  Allen 
V.  Roll,  10  a  E.   Gr.  163;   Tyson  v. 
Applegate,  13  Stew.  Eg.  305.     But  the 
court  will,  in  its  discretion,  dispense 
Avith   a  strict   adherence  to  the  rule 
where  by  complying  with  it  great  in- 
convenience  or   unnecessary  expense 
would  be  incurred.    Willink  v.  Morris 
Canal    Co.,   3    Gr.    Ch.   377;    N.   J. 
Franklinile  Co.  v.  Ames,  1  Beas.  507, 
071  appeal.     It   is  not  necessary  that 
the  complainant  should  state  upon  the 
face  of  his  bill,  in  order  to  warrant 
the  filing  of  the  bill  in  his  own  name, 
that  the  eestuis  gue  trust  are  so  numer- 
ous that  they  cannot,  without   great 
inconvenience,  be  brought  before  the 
court,  if  the  character  of  the  transac- 
tion sufficiently  appears  upon  the  face 
of  the  mortgage  as  disclosed   in    the 
bill.     Ibid.     Upon  the  death  of  the 
mortgagee  the  right  of  action   upon 
the    mortgage    securities    is    in    his 
executor  or  administrator,  and  not  in 
the  heir  of  the  mortgagee  nor  in  his 
devisee  or  legatee.     Kinna  v.  Smith, 
2  Gr.  Ch.  14.     If  there  are  conflicting 
claims   to  the   mortgage   money   be- 
tween  the   surviving   mortgagee  and 
the  executor  of  his  co-mortgagee,  the 
surviving  mortgagee  may  file  a  bill  to 
foreclose  in  his  own  name,  and  make 
the   executor  of  the   deceased   mort- 


gagee a  defendant.  Freeman  v.  Sco- 
field,  1  C.  E.  Gr.  28.  If  there  be 
more  than  one  executor,  only  those 
who  have  proved  the  will  must  be 
parties.  An  executor  who  has  re- 
nounced need  not  be  joined  as  co- 
plaintifi".  Rinehart  v.  Rinehart,  2 
McCart.  44.  Any  executor  or  admin- 
istrator, by  virtue  of  letters  obained 
in  another  state,  may  prosecute  any 
action  or  sue  out  execution  upon  any 
judgment  or  decree  in  any  court  of 
this  state,  as  if  his  letters  had  been 
granted  in  this  state,  provided  he 
shall  first  file  in  the  office  of  the  clerk 
an  exemplified  copy  of  his  letters. 
Pamph.  L.,  1887,  p.  154.  A  foreign 
executor  or  administrator  may  be- 
come a  party  complainant  upon  his 
application  and  upon  filing  in  the 
suit  an  exemplified  copy  of  the  record 
of  his  appointment.  Pamph.  L., 
1888,  p-  473.  Security  for  costs  may 
be  required  in  such  cases. 

It  has  been  held  that  an  objection 
that  the  foreign  executor  or  adminis- 
trator has  no  standing  inv  court  to 
enforce  the  mortgage,  must  be  made 
by  demurrer  or  answer,  or  it  will  be 
deemed  to  have  been  waived.  McBride 
V.  Farmers'  Rank,  2  X.  Y.  457  ;  and  see 
pages  5  and  6,  ante,  {note  c.)  A  mort- 
gage executed  to  persons  in  an  official 
capacity  may  be  foreclosed  by  their 
successors  in  office  in  their  own  names, 
as  equitable  assignees  of  the  security. 
Iglehart  v.  Bierce,  86  Ml.  133.  A  mar- 
ried woman  owning  a  mortgage  as  her 
separate  property  cannot  join  her  hus- 
band as  a  co-complainant  to  foreclose 
it.  Paulison  v.  Van  Iderstine,  1  Stew. 
Eg.  301 ;  see  Johnson  v.  Vail,  1  McCart, 
423 ;  Shockley  v.  Shoekley,  20  Ind.  108  ; 


FORECLOSURE.  333 

deliver  unto  the  said  his  certain  bond  or  writing  obligatory, 

bearing  date  the  day  of  ,  eighteen  hundred  and  , 

in  the  penal  sum  of  dollars,  lawful  money  of  the  United 

States,  conditioned    for   the  payment    by  the  said  ,  his 

heirs,  executors,  or  administrators,  or  any  of  them,  to  the  said 
,  his  certain  attorney,  executors,  administrators  or  assigns 
of  the  just  and  full  sum  of  dollars  as  aforesaid,  on  or 

before  the  day  of  then  next  ensuing  the  date  thereof, 

with  lawful  interest  for  the  same,  without  any  fraud  or  further 
delay,  as  in  and  by  the  said  bond  or  writing  obligatory,  now  in 
the  custody  of  your  orators,  and  ready  to  be  produced,  as  this 
honorable  court  shall  direct,  and  to  which,  for  greater  certainty, 
your  orators  pray  leave  to  refer,  may  more  fully  appear. 

And  your  orators  further  show,  that  the  said  being 

seized  in  fee,  or  of  some  other  good  and  sufficient  estate  or 
inheritance  of,  in  and  to  the  lots  or  parcels  of  land  hereinafter 
particularly  described  and  set  forth,  in  order  to  secure  the 
payment  of  the  said  sum  of  dollars  mentioned  in  the 

condition  of  the  said  bond  or  writing  obligatory,  and  the  interest 
that  might  accrue  thereon  to  the  said  ,  his  executors, 

administrators  and  assigns,  did,  together  with  ,  his  wife, 

by  a  certain  deed  or  indenture  of  mortgage,  under  their  hands 

Bei\,  " Married  Women"  §  11.     On  a  can  be  efiected.     He  is  not  bound  to 

bill  of  foreclosure,  it  is  not  necessary  incur  tlie  risk  of  selling  the  property 

to    make    any   encumbrancer    whose  without  the  sanction  of  a  decree     Free- 

equity  of  redemption  has  been  fore-  many.  Freeman,  2  C.E.  Gr.  4l4:.    A  bill 

closed,   a   party.     Broom  v.  Beers,  6  for  the  foreclosure  of  a  chattel  mort- 

C'onn.  19S.  gage  should  show  of  what  the  property 

Chattel  mortgages.    Chattel  mort-  consists,  the  mortgagors  title  or  claim, 

gages  are  valid  by  the  laws  of  New  to  it  and  that  it  is  within  the  jurisdic- 

Jersey,  and  the  rights  of  mortgagees  tion  of  the  court.     Chapman  v.  Hunt, 

are  similar  to  the  rights  of  mortgagees  1  McCart.  150.     To  a  suit  to  foreclose 

of  real  estate,  except  in  those  respects  a  chattel  mortgage,  the  mortgagor  of 

in  which  the  title  to  personal  property  the  holder  of  another  mortgage  is  not 

and   real  estate   differs.     Miller   ads.  a  necessary  party.     Gregory  v.  Cable, 

Shreve,   5   Butch.   250  ;    Boughten  v.  11  C.  E.  Gr.  178,     And  a  person  pur- 

Oray,  2  Stock.  323.     A  mortgagee  of  chasing  the  property  pendente  lite  is 

chattels  has  a  right  to  come  into  equity  treated   as   a   purchaser  with    notice 

to  obtain  a  foreclosure  of  the  equity  of  where  the  purchaser  derives  title  from 

redemption  and  a  sale  of  the  chattels,  one  of  the  parties  litigant.     Allen  v. 

and  also  to  protect  the  property  from  Morris,  5  Vr.  159. 
conversion  or  destruction  until  a  sale 


su 


FORMS   OF   PliEADINGS. 


and  seals  duly  executed,  bearing  date,  &c.,  ag  well  in  considera- 
tion of  the  said  debt  or  sum  of  dollars,  as  for  the  better 
securing  the  payment  thereof,  with  the  interest,  unto  the  said 
,  his  executors,  administrators  and  assigns,  in  discharge 
of  the  said  bond  and  obligation  above  recited,  did  grant,  bargain, 
sell,  convey  and  confirm  unto  the  said  ,  his  heirs  and 
assigns,  all  the  following  described  lots  or  parcels  of  land 
situate  in  the  township  of  ,  in  the  county  of  , 
and  state  aforesaid  (here  describe  the  premises  as  in  mort- 
gage).{a)     Together  with  all  and  singular  the  buildings,  &c. : 


(a)  Description  of  the  property. 
The  bill  should  so  describe  the  mort- 
gaged property  that  if  a  sale  is 
ordered  the  officer  may  know  on  what 
land  to  execute  the  decree  of  the 
court.  It  is  generally  sufficieqt,  how- 
ever, to  describe  the  premises  as  they 
appear  in  the  mortgage  itself.  The 
uncertainty  of  that  description  is  no 
ground  for  refusing  a  decree  of  sale, 
though  it  may  affect  the  title  to  the 
premises  when  sold.  Jones  on  Mori- 
gages,  ^  1462  ;  see  Vanmeter  v.  Borden, 
10  a  E.  Gr.  414.  Where,  by  mis- 
take, a  piece  of  land  not  intended  to 
be  mortgaged  was  included  in  the 
description,  the  mortgage  may  be 
foreclosed  as  to  the  other  land  without 
first  reforming  the  deed.  As  a  general 
rule,  a  mortgage  cannot  be  reformed 
or  corrected  in  a  matter  of  substance 
in  a  foreclosure  suit.  Graham  v. 
Berryman,  4  C.  E.  Gr.  29 ;  French  v. 
Griffin,  3  C.  E.  Gr.  179.  Under  a 
prayer  for  other  or  further  relief  in  a 
bill  of  foreclosure,  a  mortgage  was 
reformed  by  rectifying  it  so  as  to  con- 
vey a  fee  according  to  the  intention  of 
the  mortgagor.  Coe  v.  N.  J.  Mid. 
By.  Co.,  4  Steiv.  Eq.  105 ;  see  Fish  v. 
N.  Y.  Water  Proof  Paper  Co.,  2  Stew. 
Eq.  16,  610.  The  defence  of  mistake 
in  the  mortgage  cannot  be  raised  in 
an  answer.  If  objection  is  made  to 
the  form  in  which  the  defence  of  mis- 


take comes  before  the  court,  the  de- 
fendant will  be  required  to  seek  relief 
by  cross-bill.  Burgin  v.  Giberson,  11 
C.  E  Gr.  72.  As  a  rule,  one  defend- 
ant can  have  relief  against  another 
only  upon  a  cross-bill.  Brinkerhoffv. 
Franklin,  6  C.  E.  Gr.  334;  but  see 
practice  under  rule  212.  If  a  mort- 
gage is,  by  mistake  as  between  mort- 
gagor and  mortgagee,  so  drawn  as  not 
to  include  land  which  they  intended 
it  should  include,  and  the  mortgage  is 
recorded  as  drawn,  and  the  lands  not 
included  in  it  are  sold  to  a  bona  fide 
purchaser,  without  notice  of  the  mis- 
take, or  lands  as  well  those  included 
as  those  not  included  in  the  mortgage, 
but  intended  to  be,  are  sold,  together 
with  other  lands  not  intended  to  be 
included  in  the  mortgage,  subject  to 
such  mortgage,  as  a  part  of  them,  to  a 
bona  fide  purchaser,  without  notice  of 
a  mistake,  the  mistake  will  not  be 
corrected  as  against  such  purchaser, 
Bulgers  v.  Kingsland,  3  Hal.  Ch.  178, 
658.  After  a  decree  of  foreclosure  and 
a  sale  of  the  mortgaged  premises '  as 
actually  described,  the  mortgage  can- 
not be  reformed  and  a  sale  made  of  an 
additional  quantity  of  land  alleged  to 
have  been  omitted  in  the  description 
contained  in  the  mortgage.  Id.  658  ; 
see  Waldron  v.  Letson,  2  McCart.  126 ; 
Zingsem  v.  Kldd,  2  Stew.  Eq.  516. 


FORECLOSURE.  335 

to  have  and  to  hold  the  said  lots  or  parcels  of  land,  heredita- 
ments and  premises  therein  granted,  or  intended  so  to  be,  with 
the  appurtenances,  unto  the  said  ,  his  heirs  and  assigns 

forever;  provided  always,  and  the  said  indenture  of  mortgage 
was  therein  declared  to  be  upon  this  express  condition,  that  if 
the  said  party  of  the  first  part  to  the  said  indenture  of  mortgage, 
his  heirs,  executors  or  administrators,  should  well  and  truly  pay, 
or  cause  to  be  paid,  unto  the  said  ,  his  certain  attorney, 

executors,  administrators  or  assigns,  the  said  sum  of 
dollars,  together  with  lawful  interest  thereon,  at  the  time  and  in 
the  manner  mentioned  in  the  said  condition,  according  to  the 
true  intent  and  meaning  thereof,  then  the  said  indenture  of  mort- 
gage and  the  estate  thereby  granted  should  cease,  determine  and 
from  thenceforth  be  null  and  void. 

And  your  orators  further  show,  that  after  the  execution  of  the 
said  indenture  of  mortgage,  the  same  was,  in  due  form  of  law, 
acknowledged  by  the  said  and  ,  his  wife,  on  the 

day  of  the  date  thereof,  before  ,  [one  of  the  commissioners 

appointed  to  take  the  acknowledgment  and  proofs  of  deeds,  &c., 
,  in  and  for  the  said  county  of  ,]  and  the  said  indenture  of 

mortgage  was  duly  recorded  (or  "  registered")  in  the  clerk's  [or 
"register's")  office  of  the  county  of  ,  in  Book  of 

Mortgages,  page  ,  on  the  day  of  ,  eighteen 

hundred  and  ,  as  by  the  certificate  of  the  clerk  (or  "reg- 

ister") of  the  said  county,  endorsed  on  the  said  indenture  of 
mortgage,  fully  appears,  and  to  which  record  (or  "registry")  and 
certificate  thereof,  so  as  aforesaid  endorsed  on  the  said  indenture 
of  mortgage,  your  orators,  for  greater  certainty,  beg  leave  to  refer, 
if  it  be  necessary  so  to  do.(a) 

(a)  Of  the  frame  of  the  bill.  In  of  the  document,  omitting  all  parts  not 
<;ase  of  a  corporation  complainant,  an  relevant  to  the  relief  sought,  or  the  de- 
averment  of  its  corporate  existence  is  fence  set  up  ;  and  no  pleading  shall 
unnecessary.  German  lief.  Ch.  v.  Von  repeat  documents  or  parts  of  docu- 
Puechelstein,  12  C.  E.  Gr.  30.  No  bill  ments  set  forth  in  any  previous  plead- 
er other  pleading  shall  recite  records,  ing,  but  if  the  same  are  not  fully  or 
deeds,  or  other  documents  in  full,  but  accurately  set  forth,  it  may  add  such 
only  so  much  and  such  parts  thereof  parts  as  shall  be  necessary  to  complete 
as  may  be  necessary  for  the  clear  ex-  or  correct  the  same.  Rule  49.  No 
hibition  of  the  case,  or  the  construction  foreclosure   bill   shall   set    forth    the 


336 


FOEMS   OF   PLEADINGS. 


And  your  orators  further  show,  that  on  or  about  the 
day  of  ,  eighteen  hundred  and  ,  the  said 

and  ,  his  wife,  executed  a  mortgage  on  the  same  premises 

to  one  ,  to  secure  the  sum  of  ,  or  some  other  sum, 

by  virtue  of  which  mortgage  the  said  claims  to  have  some 


bond  or  mortgage  at  length,  but  only 
those  parts  thereof  upon  which  the 
relief  sought  is  founded,  including  the 
date,  names  of  parties,  consideration, 
words  of  conveyance,  description  of 
premises,  the  words  limiting  the  estate 
and  the  condition  in  full ;  and  no  costs 
shall  be  taxed  or  allowed  for  any  bill 
drawn  in  palpable  violation  of  this 
rule.      Rule    50.      The    complainant 
must  show  by  his  bill  either  that  he  is 
the  mortgagee,  or  that  he  has  legal 
title  to  the  security  by  assignment  or 
otherwise.     It  is  not  necessary  to  set 
out  the  assignment.     An  allegation 
that   the   complainant   is   assignee  is 
sufficient.     Cornelius  v.  Halsey,  3  Stock. 
27.     The  bill  must  also  show  the  ma- 
turity  of  the   mortgage  debt.     Ibid. 
When,  by  the  terms  of  the  mortgage, 
it  has  become  due  by  default  in  the 
payment  of  interest,  before  suit  com- 
menced, it  is  not  necessary  that  the 
bill  should  formally  allege  that  the 
principal  was  due.    An  allegation  that 
no  principal  or  interest  has  been  paid 
is  sufficient.     Bodine  v.  Gray,  9  C.  E. 
Gr.  335.     When  the  debt  is  payable 
by  installments,   a   suit   to   foreclose 
,  may  be  brought  when  the  first  install- 
ment falls  due  and  is  not  paid.    Grat- 
tan  v.  Wiggins,  23  Cal.  16.     In  such 
case,  if  it  shall  appear  to  the  court 
that  a  part  of  the  mortgaged  premises 
cannot  be  sold  without  material  injury 
to  the  remaining  part  thereof,  and  that 
it  is  just  and  reasonable  that  the  whole 
should  be  sold  together,  the  court  may 
so   decree.    Bev.,   "  Chancery"    §   74. 
When  the  proceedings  are  under  this 


statute,  the  jurisdictional  facts  should 
be  set  forth  in  the  bill. 

It  was  held  that  where  the  princi- 
pal debt  was  due,  and  the  mortgagee, 
on  a  foreclosure  for  non-payment  of 
interest,  purchased  the  premises,  he 
thereby  extinguished   the  mortgage. 
Mott  V.   Shreve,    10    C.   E.    Gr.  438. 
In    such    case    the    proper    practice 
would    be  to  sell    expressly  subject 
to    the    principal    of    the   mortgage. 
Where  a  bill  to  foreclose  contained 
no  allegation  that  the  complainant's 
mortgage  was  given  for  unpaid  pur- 
chase-money, or  that  subsequent  mort- 
gagees, made  defendants,  had  notice 
of  it  before  the  mortgage  to  them,  and 
the  priority  of  the  complainant's  mort- 
gage depended  on  these  facts,  and  they 
appeared  clearly  in  proof — held,  that 
the  bill  was  defective,  and  no  decree 
or  relief,  founded  on  the  facts  above 
stated,  could  be  given  unless  they  were 
set  forth  in  the  bill ;  but  that  the  bill 
might  be  amended.  Armstrong  v.  Rcss, 
5  C.  E.  Gr.  109.     No  positive  relief  is 
ever  granted  a  defendant,  except  on 
cross-bill.     Leddel's  Ex'r  v.  Starr,  4  C. 
E.  Gr.  159.    A  mortgagee  having  two 
mortgages   upon   the   same  premises 
must  include  both  in  one  bill  for  fore- 
closure.    Costs  will  be  allowed  but  in 
one  suit.    If  one  mortgage  covers  only 
a  part  of  the  premises  included  in  the 
other,  suit  should  be  brought  in  the 
first  place  for  the  foreclosure  of  the 
mortgage  covering  the  entire  premi- 
ses, for  then  a  second  suit  will  be  un- 
necessary.    Demarest  v.  Berry,  1  G.  E. 
Gr.  481. 


FORECLOSURE.  337 

lien  upon  the  said  premises;  but  your  orators  charge  that  the 
last-mentioned  mortgage  was  executed  and  recorded  subsequent  to 
your  orators'  &aid  mortgage,  and  with  full  notice  thereof,  and  if 
an  encumbrance  at  all  upon  the  said  premises,  is  subsequent  to 
the  mortgage  of  your  orators. 

And  your  orators  further  show,  that  on  or  about  the 
day  of  ,  eighteen  hundred  and  ,  as  your  orators 

have  been  informed  and  believe,  one  recovered  a  judgment 

against  the  said  and  one  ,  in  the  Supreme  Court 

of  New  Jersey,  for  the  sum  of  dollars,  or  some  other  sum, 

by  virtue  of  which  judgment  the  said  claims  to  have  some 

lien  upon  the  said  premises;  but  your  orators  charge  that  the 
said  judgment  was  obtained  subsequent  to  the  execution  of  your 
orators'  said  mortgage,  and  with  full  notice  thereof,  and  if  a  lien 
at  all  upon  the  said  premises,  is  subsequent  to  the  encumbrance 
of  your  orators'  said  mortgage. 

And  your  orators  further  show,  that  on,  &c.,  a  rule  was 
entered  in  the  minutes  of  the  said  Supreme  Court,  that,  it 
appearing  (upon  an  application  made,  and  notice  thereof  given 
to  the  other  parties  to  the  judgment  above  mentioned),  that  the 
said  judgment  has  been  paid  by  the  said  ,  a  defendant 

secondarily  liable  thereon,  he  should  have  the  full  benefit  and 
control  of  such  judgment,  for  the  purpose  of  compelling  re- 
payment from  the  said  defendant,  ,  who  is  liable  to  him 
for  such  repayment.  By  reason  whereof  the  said  claims 
to  have  some  lien  on  the  said  mortgaged  premises,  but  your 
orators  charge  that  his  claim  is  subject  to  your  orators'  said 
mortgage. 

And  your  orators  further  show,  that  afterwards,  to  wit,  on  or 
about  the  day  of  ,  eighteen  hundred  and  , 

the  said  ,  [one  of  the  heirs-at-law  as  aforesaid),  conveyed 

all  his  right,  title  and  interest  which  he,  the  said  had,  or 

claimed  to  have  in  said  premises,  to  one  ,  by  virtue  of 

which  conveyance  the  said  claims  to  have  some  interest 

in  the  said  premises ;  but  your  orators  expressly  charge  that  the 
said  conveyance  was  made  subsequent  to,  and  with  full  knowl- 
edge of  your  orators'  said  mortgage. 

w 


338  FORMS   OF   PLEADINGS. 

And  your  orators  further  show,  that  after  the  execution  of  the 
said  bond  or  writing  obligatory,  and  of  the  said  deed  or  inden- 
ture of  mortgage  from  the  said  and  wife  to  the  said  , 
and  before  paying  or  in  any  way  satisfying  the  same,  to  wit,  on 
or  about  the  day  of  ,  eighteen  hundred  and  , 
the  said  {the  purchaser)  departed  this  life  intestate,  leaving 
and  ,  his  sons  and  heirs-at-law ;  *  and  that  letters 
of  administration  of  all  and  singular  the  goods  and  chattels,  &c., 
which  were  of  the  said  ,  have  been  duly  granted  by  , 
surrogate  of  said  county  of  ,  to  one  ,  who  has  taken 
upon  himself  the  burthen  thereof;  (or  if  no  letters  of  adminis- 
tration have  been  granted,  after  *  add,  "and  that  no  letters  of 
administration  have  been  granted  to  any  one  upon  his  estate.") 

And  your  orators  further  show,  that  they  have  been  informed 
and  verily  believe  that  the  said  and  ,  heirs-at-law 

of  the  said  above-mentioned,  are  infants  under  the  age  of 

twenty-one  years,  to  wit,  that  the  said  is  of  the  age  of 

fourteen  years  and  upwards;  and  that  said  is  under  the 

age  of  fourteen  years. 

And  your  orators  further  show,  that  on  {date)  the  said 
entered  into  a  recognizance  to  the  State  of  New  Jersey  with 
condition  for  his  appearance  at  the  Court  of  Quarter  Sessions 
of  the  Peace   in  and   for   the  county  of  in  the  sum  of 

,  by  reason  whereof  the  said  the  State  of  New  Jersey 
may  have  some  interest  in  the  said  mortgaged  premises. 

And  your  orators  further  show,  that  on,  &c.,  one  filed 

in  the  office  of  the  clerk  of  the  county  of  ,  a  lien  under 

the  act  entitled  "An  act  to  secure  to  mechanics  and  others  pay- 
ment for  their  labor  and  materials  in  erecting  any  building," 
and  the  supplements  thereto,  against  the  said  mortgaged  premises 
and   the   building   thereon,  and   about   the   {date)  said 
recovered  judgment  on  said  lien-claim  against  and  , 

as  builder  and  owner  respectively,  in  the  Court,  for  the 

sum  of  dollars,  by  reason  whereof  said  may  claim 

some  interest  in  said  mortgaged  premises. 

And  your  orators  further  show,  that  afterwards,  to  wit,  on  or 
about  the  day  of  ,  eighteen  hundred  and  ,  the 


FORECLOSURE.  339 

said  departed  this  life,  having  first  duly  made,  executed 

and  published  his  last  will  and  testament,  in  writing,  in  due 
form  of  law,  and  thereby  did,  among  other  things,  appoint  your 
orators  the  executors  thereof. 

And  your  orators  further  show,  that  the  said  last  will  and 
testament  of  the  said  ,  deceased,  was  afterward,  to  wit, 

on  the  day  of  ,  eighteen  hundred  and  ,  duly 

proved   by  your   orators,  the  executors  therein  named,  before 
,  surrogate  of  the  said  county  of  ,  as  by  a  certified 

copy  of  the  same,  and  probate  thereof,  now  in  the  custody  of 
your  orators,  and  ready  to  be  produced  when  and  where  this 
honorable  court  may  direct,  or  the  record  thereof,  now  remain- 
ing in  the  surrogate's  office  of  said  county  of  ,  in  Book 
of  Wills,  page  ,  &c.,  reference  being  thereunto  had, 
may  more  fully  appear. 

And  your  orators  further  show,  that  they  have  taken  upon 
themselves  the  burthen  of  the  administration  of  the  estate  of  the 
said  ,  deceased,  pursuant  to  his  said  last  will  and  testament, 

and  that  they  are  entitled  to  have  and  receive  the  moneys  now 
due  and  owing  for  principal  and  interest  on  the  said  bond  or 
writing  obligatory,  and  in  the  proviso  of  redemption  of  the  said 
deed  or  indenture  of  mortgage  mentioned. 

And  your  orators  further  show,  that  no  part  of  the  principal 
sum  of  dollars,  mentioned  in  the  condition  of  your  orators' 

said  bond  or  writing  obligatory,  and  in  the  proviso  of  redemp- 
tion of  their  said  deed  or  indenture  of  mortgage  has  been  paid 
by  the  said  ,  in  his  lifetime,  or  by  the  said  ,  his  wife, 

or  by  any  other  person  or  persons  whomsoever,  since  his  decease, 
either  to  the  said  ,  in  his  lifetime,  or  to  your  orators,  since 

the  decease  of  the  said  ,  or  to  any  other  person  or  persons 

whomsoever  for  their  use,  and  that  no  part  of  the  interest  money 
due  upon  the  said  bond  or  writing  obligatory  has  been  paid, 
except  the  sum  of  dollars,  paid  on  the  day  of  , 

eighteen  hundred  and  ;  which  said  payment  of  interest 

money  was  made  to  the  said  ,  in  his  lifetime,  and  was  in 

full  of  the  interest  money  due  upon  the  said  principal  sum  of 
dollars,  mentioned  in  the  condition  of  the  said  bond,  and 
in  the  proviso  of  redemption  of  the  said  deed  or  indenture  of 


340  FORMS   OF   PLEADINGS. 

mortgage,  up  to  the  day  of  ,  eighteen  hundred  and 

,  as  by  the  receipt  for  the  same,  signed  by  said  , 

and  endorsed  upon  the  said  bond  and  writing  obligatory  in  the 
custody  of  your  orators,  and  ready  to  be  produced  when  and 
where  this  honorable  court  may  direct,  reference  being  thereunto 
had,  will  more  fully  appear. 

And  your  orators  further  show,  that  there  is  now  due  unto 
yours  orators,  as  the  executors  of  the  said  ,  deceased,  the  * 

said  principal  sum  of  dollars,  mentioned  in  the  condition 

of  the  said  bond  or  writing  obligatory,  and  in  the  proviso  of 
redemption  in  the  said  deed  or  indenture  of  mortgage,  and 
interest   upon   the  said   principal   sum  from  the  day  of 

,  eighteen  hundred  and  ,  and  the  estate  of  your 

orators  in  the  said  mortgaged  premises  has  become  absolute ; 
(or,  if  the  foreclosure  be  for  interest  only,  insert  after  *,  "sum  of 
dollars,  for  interest  on  your  orators'  said  mortgage,  and 
that  the  principal  sum  secured  thereby  will  become  due,"  state 
date  of  maturity  of  mortgage ;  or,  if  the  suit  be  for  an  installment 
of  the  mortgage  debt,  after  *  say,  "  sum  of  dollars,  part  of 

the  principal  sum  secured  by  your  orators'  said  mortgage,"  and 
add,  if  the  fact  is  so,  "  and  that  a  part  of  the  mortgaged  premises 
cannot  be  sold  to  satisfy  the  amount  due  upon  your  orators' 
mortgage  without  material  injury  to  the  remaining  part  of  the 
mortgaged  premises,  and  that  it  is  just  and  reasonable  that  the 
whole  of  the  mortgaged  premises  should  be  sold  together,  and 
the  proceeds  of  said  sale,  or  so  much  thereof  as  may  be  neces- 
sary, applied  to  the  payment  of  the  amount  due  to  your  orators 
as  aforesaid,  with  their  costs,  and  also  the  principal  sum  to  be- 
come due  as  aforesaid,  with  interest  thereon.")(a) 

And  your  orators  further  show,  that  the  said  ,  in  his 

lifetime,  and  the  said  {defendants, ){b)  or  some  or  one  of  them, 

(a)  See  Bev., "  Chancery,"  I  74.  ers  or  encumbrancers,  or  otherwise, 
(6)  Of  parties  defendant.  It  is  with  sufficient  particularity  to  show 
sufficient  for  the  comphxinant,  after  the  nature  of  such  defendants'  inter- 
setting  out  his  own  rights,  to  set  fortli  ests  or  claims.  Where  there  are  in- 
(on  information  and  belief,  if  pre-  fant  defendants,  the  complainant  must 
ferred,)  the  interests  of  the  defendants  allege  the  requisite  facts  to  show  what 
in  the  premises  as  subsequent  purchas-  their  interests  are.     In  respect  to  the 


FORECLOSURE. 


341 


since  the  death  of  the  said  ,  have,  at  all  times  since  the 

execution  and  delivery  of  your  orators'  said  mortgage,  possessed 
and  enjoyed,  and  still  do  possess  and  enjoy  the  said  mortgaged 


defendants  in  a  foreclosure  suit,  they 
are  eitlier  necessary  or  proper  parties. 
A  necessary  party  is  one  whose  pres- 
ence hefore  the  court  is  indispensable 
to  the  rendei-ingof  adecree  which  shall 
have  any  effect  on  the  property;  with- 
out whom  the  court  might  properly 
refuse  to  proceed,  because  its  decree 
would  be  practically  nugatory.    Jones 
on  ]\rortgages,  §  1394.    If  the  owner  of 
the  premises  is  not  a  party  to  the  pro- 
ceedings of  foreclosure,  the  equity  of 
redemption  is  not  affected  by  the  de- 
cree.   Brundred  v.  Walker  et  al.,  1  Beas. 
140.     A  mortgagor  who   has   parted 
with  all  his  interest  in  the  mortgaged 
premises,  is  not  a  necessary  party  to  a 
bill  of  foreclosure.     Chester  v.  King,  1 
Gr.  Ch.  405 ;   Vreeland  v.  Loubat,  Id. 
104.     A  mortgagee  who  has  assigned 
his   mortgage   by  an   instrument  not 
under  seal,  and   in  whom   the  legal 
title  to  the  mortgaged  premises  still 
remains,  is  not  a  necessary  party  to  a 
bill  of  foreclosure  filed  by  the  assignee. 
Parker  v.  Stevens,  2  Gr.  Ch.  56.    Upon 
a  bill  for  foreclosure  and  sale  of  mort- 
gaged premises,  all  the  subsequent  en- 
cumbrancers are  necessary  parties,  and 
to   effectuate  a   complete  decree,  the 
existence,  validity,  order  of  priority, 
and   amount    due   upon   the   several 
mortgages,  must  be   settled   and   de- 
cided.    Vanderveer  v.  Holcomb,  2   C. 
E.  Or.  87  ;  Irick  v.  Black,  2  C.  E.  Gr. 
190;    Gould  V.  Wheeler,  1  Stew.  Eq. 
541.     The   first   mortgagee   is   not  a 
proper  party  to  a  bill  by  a  subsequent 
mortgagee,  if  the  sole  design  of  the 
bill  is  a  foreclosure  of  the  equity  of 
redemption.     Hudnit  v.  Nash,  1  C.  E. 
Gr.  550.     When  prior  encumbrancers 
are   made  parties  to  a  bill   for   fore- 


closure and  sale  of  mortgaged  prem- 
ises, if  the  first  mortgagee,  defendant 
in  such  bill,  comes  in  with  his  mort- 
gage, he  simply  assents  to  the  relief 
prayed  for  by  the  complainant.    Ihid. 
All  parties  in  interest  in  the  subject- 
matter  of  a  suit,  and  ■who  are  neces- 
sary to  the  protection  of  other  parties, 
are  necessary  parties.    Hicks  v.  Camp- 
bell, 4  C.  E.  Gr.  183.     The  rule  that 
to  a  bill  to  foreclose  a  mortgage  made 
to   a   trustee   in   trust,  the  cestui  que 
trust,  as  well  as  the  trustee,  should  be 
made  a  party,  is  to  be  observed  when 
the  cestuis  que  trust  are  known,  and 
are  not  so  numerous  as  to  make  it  im- 
possible or  highly  inconvenient  to  in- 
clude them  as  parties.     Tyson  v.  Ap- 
jylegate,  13  Stew.  Eq.  305.    All  persons 
whose   interests  are  involved   in   the 
issue,  and   who   must  necessarily   be 
affected  by  the  decree,  are  necessary 
parties.     Pence  v.  Pence,  2  Beas.  257. 
Where  it  appears,  at  any  time  before 
final  decree,  that  a  person  not  made 
a   party  is  a   necessary   party  to  the 
suit,   courts   of  equity  will,  of  their 
own  motion,  arrest   the   proceedings, 
that    such    person   may   be    made   a 
party.     Van  Keuren   v.  McLaughlin, 
6  C.  E.  Gr.  163 ;  Gould  v.  Wheeler, 
1    Stew.    Eq.    541.      Junior    encum- 
brancers may  be  admitted  as  defend- 
ants  in  a   foreclosure  suit,   by    peti- 
tion.    Leveridge  v.  Marsh,  3  Stew.  Eq. 
59.     An  objection  for  want  of  proper 
parties,  taken    at    the    hearing,   will 
not   prevail,  unless   such   parties  are 
necessary  to   the  final   determination 
of  the  cause.    Van  Doren  v.  Robinson, 
1   C.  E.  Gr.  256 ;   Voorhees  v.  Melick, 
10   C.   E.    Gr.  523.     A   person   who 
has   an   interest    in    property   which 


342 


FORMS   OF   PLEADINGS. 


premises,  and  every  part  thereof;  and  have  at  all  times  received, 
and  still  do  receive,  the  rents,  issues  and  profits  thereof;  and 
that  the  said  premises  are  a  slender  and  scanty  security  for  the 


is  the  subject-matter  of  a  suit, -is  not  a 
necessary  or  proper  party,  if  his  in- 
terest cannot  in  any  way  be  affected 
by  the  result.  Van  Keurtii  v.  Mc- 
Laughlin, 6  C.  E.  Gr.  163.  No  person 
is  a  necessary  party  against  whom  the 
complainant  is  entitled  to  no  relief, 
and  as  against  whom,  at  the  hearing, 
the  bill  must  be  dismissed.  Ibid.  A 
foreclosure  suit  is  not  a  proper  pro- 
ceeding in  which  to  litigate  the  rights 
of  a  party  claiming  title  to  the  mort- 
gaged premises  in  hostility  to  the 
mortgagor.  Wilkins  v.  Kirkbride,  12 
C  E.  Gr.  93.  Remaindermen  who 
have  not  joined  in  a  mortgage  in  fee 
made  by  a  life  tenant,  are  neither 
necessary  nor  proper  parties  to  a  fore- 
closure suit  on  the  mortgage.  Ibid. 
Proper  parties  are  not  always  neces- 
sary parties,  and  where  no  objection 
to  want  of  a  party  as  a  necessary  party 
was  made  below,  nor  such  want  made 
a  ground  of  appeal,  the  Court  of 
Errors  and  Appeals  will  not  permit 
such  question  to  be  raised,  unless  the 
party  omitted  is  an  indispensable 
party,  and  justice  cannot  be  done 
without  him.  Berryman  v.  Graham, 
6  C.  E.  Gr.  370.  A  mortgagor,  after 
his  equity  of  redemption  is  sold,  is  not 
a  necessary  party  to  a  bill  for  fore- 
closure. Andrews  v.  Stelle,  7  C.  E. 
Gr.  478.  A  sale  of  the  mortgagor's 
interest  upon  execution,  does  away 
with  the  necessity  of  making  him  a 
party  as  effectually  as  a  voluntary  sale 
would.  Jones  on  Mortgages,  ^  1405. 
In  Freeman  v.  Scofield,  1  C.  E.  Gr.  28, 
it  was  held  that  where  a  mortgage  is 
given  or  assigned  for  the  payment  of 
a  debt  due  to  two  or  more  jointly,  on 
a  bill  to  foreclose,  filed  by  the  surviv- 


ing obligee,  the  executor  of  a  deceased 
co-obligee  need  not  necessarily  be 
joined  as  a  complainant;  and  that 
when  there  are  conflicting  claims  be- 
tween the  parties  in  interest  in  the 
mortgage  debt,  the  surviving  obligee 
may  file  the  bill  in  his  own  name, 
and  make  the  executor  of  the  deceased 
co-obligee  a  defendant.  In  Trades 
Savings  Bank  v.  Freese,  11  C  E.  Gr. 
453,  it  was  held  that  on  a  suit  to  fore- 
close a  mortgage,  given  to  A  and  his 
wife  jointly,  brought  by  the  holder  of 
the'mortgage  under  assignment  from 
A's  executors,  in  which  A's  widow  did 
not  join,  the  widow  was  a  necessary 
party  defendant. 

The  owner  of  a  mortgage,  by  an 
unrecorded  assignment,  is  bound  by 
proceedings  in  foreclosure  of  a  prior 
mortgage  in  this  court,  to  which  his 
assignor  was  made  a  party  defendant 
by  reason  of  his  apparent  ownership 
of  the  mortgage,  so  far  as  the  mort- 
gaged premises  are  concerned,  although 
he  was  not  a  party  to  such  proceed- 
ings. Cannon  v.  Wright,  4  Dick.  Ch. 
Bep.  17. 

Where  the  assignment  of  a  judg- 
ment constituting  a  lien  on  mortgaged 
premises  is  absolute  and  uncondi- 
tional, the  assignor  is  not  a  necessary 
party  to  a  bill  for  foreclosure.  Bruen 
V.  Crane,  1  Gr.  Ch.  347.  Husband 
and  wife  gave  a  bond  and  mortgage 
on  the  property  of  the  wife  to  secure 
the  bond.  The  husband  died.  On  a 
bill  to  foreclose  the  mortgage,  it  was 
held  that  neither  the  heirs-at-law  nor 
the  personal  representatives  of  the 
husband  were  necessary  parties.  Sav- 
ings Association  v.  Vandevere,  3  Stock. 
382.      The    assignee   of   a    bankrupt 


FOKECLOSURE. 


343 


payment  of  the  principal  and  interest  money  so  due,  and  grow- 
ing due,  to  your  orators. 

And  your  orators  further  show,  that  they  have  frequently, 
and  in  a  friendly  manner,  applied  to  the  said  {defendants,)  and 


or  an  insolvent  is  a  necessary  party 
to  a  bill  affecting  the  property  of  such 
bankrupt  or  insolvent,  because  the 
property,  by  the  assignment,  passes 
to,  and  vests  in,  the  assignee.  Willink 
V.  Morris  Canal  Co.,  3  Or.  Ch.  377 ; 
Mul.  Life  Ins.  Co.  v.  Sturges,  5  Stew. 
Eq.  684.  Where  the  owner  of  the 
equity  of  redemption  is  declared  to  be 
a  bankrupt  pending  a  suit  to  foreclose 
a  mortgage,  the  assignee  in  bank- 
ruptcy must  be  made  a  party  before  a 
decree  can  be  regularly  taken  in  such 
suit.  Anon ,  10  Paige  20i  Where 
the  receivers  were  appointed  after  a 
decree  pro  confcsso  had  been  taken 
against  the  corporation,  by  which  the 
right  of  the  complainant  to  recover 
was  established^Ae/c?,  that  they  were 
not  necessary  parties,  and  an  objec- 
tion, made  by  a  third  party,  to  the 
bill,  for  want  of  proper  parties,  on  that 
ground,  was  not  sustained.  Willink 
V.  Morris  Canal  Co.,  supra.  If  the 
receivers  should  ask  to  be  substituted 
as  defendants,  with  a  view  of  setting 
up  a  defence,  the  court  would  permit 
them  to  do  so  at  any  stage  of  the  pro- 
ceedings. Ibid.  If  the  bill  is  defective 
for  want  of  parties,  the  complainant 
will  be  permitted  to  amend  by  adding 
the  proper  parties.  So  leave  will  be 
given  at  the  hearing  to  amend,  when 
a  matter  has  not  been  put  in  the  bill 
with  sufficient  precision ;  also  to 
amend  the  prayers  for  relief,  or  any 
clerical  mistake  or  misstatement. 
Seymour  v.  Long  Dock  Co.,  2  C.  E.  Gr. 
169.  After  general  demurrer  for  want 
of  equity,  amendments  are  granted 
only  where  there  is  some  defect  as  to 


parties,  or  some  omission  or  mistake 
of  a  fact  or  circumstance  connected 
with  the  substance  of  the  case,  but  not 
forming  the  substance  itself.  Ibid. 
Purchasers  and  encumbrancers  who 
have  acquired  their  interests  in  the 
equity  of  redemption,  after  the  com- 
mencement of  proceedings  to  fore- 
close, need  not  be  brought  before  the 
court.  If  a  mortgagor  could,  after 
the  commencement  of  the  suit,  create 
new  parties  at  his  pleasure,  by  mak- 
ing new  encumbrances  upon  his  prop- 
erty, whose  presence  in  court  would 
be  necessary  to  the  foreclosure  of  their 
rights,  there  might  be  no  end  to  the 
suit.  Garth  v.  Ward,  2  Atk.  175. 
Such  cases  are  provided  for  by  statute. 
Rev.,  "  Chancery,"  §  41.  If,  pending 
the  bill,  the  mortgagor's  interest  in 
the  land  is  sold  on  execution,  the 
plaintiff  is  not  bound  to  amend  his 
bill  so  as  to  make  the  purchaser  a 
party.  Bennett  v.  Calhoun  As&^n,  9 
Rich.  163.  The  provision  of  law  re- 
quiring notice  of  the  pendency  of  a 
suit  in  chancery  to  be  filed  in  the 
register's  or  clerk's  office  of  the  county, 
does  not  apply  to  foreclosure  proceed- 
ings. Rev.,  "Chancery,"  ^  57.  A 
lunatic,  having  an  interest  in  the 
cause,  must  be  made  a  party.  Harri- 
son V.  Rowan,  4  Wash.  C.  C.  202,  207. 
The  guardian  of  a  party  defendant, 
declared  a  lunatic  after  the  bill  was 
filed,  should  be  made  a  party  to  the 
suit.  Search  v.  Search,  11  C.  E.  Or. 
110.  A  married  woman  is  a  necessary 
party  by  reason  of  her  inchoate  right 
of  dower.  Carter  v.  Denman's  Exr,  3 
Zab.  260 ;  Jones  on  Mortgages,  |?  1420, 


344  FORMS   OF   PLEADINGS. 

requested  them  to  pay  to  your  orators  the  amount  of  principal 
and  interest  moneys  so  remaining  due  to  your  orators  on  the 
said  bond  or  writing  obligatory  and  indenture  of  mortgage  so  as 
aforesaid  given  by  the  said  ,  in  his  lifetime,  and  , 

his  wife,  to  the  said  ,  in  his  lifetime,  or  that  they  would 

suifer  your  orators  to  enter  upon  the  possession  of  the  said  mort- 
gaged premises,  and  receive  and  take  the  rents,  issues  and  profits 
thereof;  and  that  they  would  release  to  your  orators  all  their 
right,  title  and  equity  of  redemption  of,  in  and  to  the  said  mort- 
gaged premises,  and  deliver  unto  your  orators  all  deeds,  evidences 
and  muniments  of  title  relating  to  and  concerning  the  same. (a) 

And  your  orators  well  hoped  that  the  said  [defendants)  would 
have  complied  with  such  reasonable  requests,  as  in  justice  and 
equity  they  ought  to  have  done : 

To  the  end,  therefore,  {insert  interrogating  part,  as  on  page 
10,  ante;)  and  that  they  may  be  decreed  to  pay  unto  your 
orators,  by  a  short  day  to  be  appointed  by  this  honorable  court, 
the  amount  found  due  unto  your  orators  upon  said  bond  and 
mortgage,  together  with  your  orators'  costs  and  charges  in  this 
behalf  expended ;  and  that,  on  failure  thereof,  they,  and  all  per- 
sons claiming  or  to  claim  by,  from,  through  or  under  them,  or 
any  of  them,  may  be  barred  and  foreclosed  forever  of  and  from 

1421.     A   creditor,   holding   a   judg-  to  be  dead,  and  the  complainant  has 

ment  recovered  prior  to  the  mortgage,  been  unable  to  ascertain   the  names 

is  not  a  proper  party  to  a  suit  to  fore-  and  residences  of  his  heirs,  devisees  or 

close  it,  unless  an  equity  is  claimed  personal  representatives,  or  that  any 

against   him.     Hendry   v.   Quinan,   4  person  mentioned  in  the  bill,  or  his 

Hal.  Ch.  534.     The  executors  or  ad-  heirs,  devisees  or  personal  representa- 

ministrators  of  a  deceased  mortgagor  tives  are  proper  parties  defendant,  and 

are  proper  parties,  as  they  have  an  he    has     been    i;nable     to    ascertain 

interest   in   the   land   in  case  a  sale  whether  such  person  is  still  alive,  or  if 

thereof   is    necessary    to    pay   debts.  he  is  known  or  believed  to  be  dead, 

If  a  person  be  properly  charged  in  has    been    unable    to    ascertain    the 

the     bill     as     executor,    devisee    or  names  and  residences  of  his  heirs,  &c., 

assignee,  or  in  any  other  capacity,  it  such  parties  will  be  proceeded  against 

is  not  a  good  objection  that  he  is  not  according   to   the   provisions   of    the 

so  styled  in  the  prayer  for  process  of  acts  regulating  such  jiractice,  to  which 

subpoena.     White  v.  Davis,  3  Dick.  Ch.  the    reader   is   referred    as    follows: 

Rep.  22.  Pamph.  L.,  1891,  p.  96;  Pamj^ih.  L., 

(a)  If  any  person  claiming  title,  1892,  p.  192  ;  Pamph.  L.,  1893,  p.  256. 
<&c.,  to  the  lands  is  known  or  believed 


FOEECLOSURE. 


345 


all  right,  title  and  equity  of  redemption,  of,  in  and  to  the  said 
mortgaged  premises,  and  every  part  thereof,  and  may  deliver 
the  possession  of  the  said  mortgaged  premises,  and  all  deeds, 
evidences  and  muniments  of  title  relating  to  and  concerning  the 
same,  unto  your  orators;  or,  if  your  Honor  shall  deem  it  more 
equitable  and  just,  that  the  mortgaged  premises,  with  the  appur- 
tenances, may  be  sold  to  pay  unto  your  orators  the  money  so 
due  and  owing  to  them  as  aforesaid,  and  their  costs  and  charges; 
and  that  your  orators  may  have  such  further  or  other  relief  in 
the  premises  as  the  nature  of  the  case  may  require,  and  as  may 
be  agreeable  to  equity  and  good  conscience.)(a)  May  it  please 
your  Honor,  &c.,  {inset  prayer  for  subpcvna,  as  on  page  ]  2,  ante.) 

{Signature  of  solicitor  and  counsel.) 


Answer  to  bill  of  foreclosure,   setting  up  a  ten- 

der.(6)     After  title,  as  in  form  on  page  104,  ante,  then,  "that 
this  defendant  admits,  {stating  briefly  those  allegations  of  the  bill 


(o)  By  carefully  noticing  the  form 
and  order  of  stating  the  various  facts 
in  the  above  bill,  the  solicitor  Avill 
find  no  difficulty  in  conforming  it  to 
the  great  variety  of  circumstances  he 
will  meet  with  in  foreclosure  cases. 

(b)  Tender.  The  remedy  of  the 
mortgagor,  where  there  has  been  a 
lawful  tender  of  the  amount  due  on 
the  mortgage,  and  refusal  to  receive' 
it,  is,  where  a  bill  to  foreclose  the 
mortgage  has  been  brought,  to  set  up 
the  tender  by  answer,  or  to  file  a  bill 
to  redeem ;  in  both  cases  the  whole 
mortgage  money  should  be  paid  into 
court.  A  tender  of  the  mortgage  debt 
does  not,  in  New  Jersey,  discharge 
the  lien  of  the  mortgage.  Stockton  v. 
Dundee  Co.,  7  C.  E.  Gr.  56.  A  tender 
of  the  amount  of  a  mortgage  on  the 
day  on  which  it  is  due,  determines 
the  estate  of  the  mortgagee  in  the  land, 
although  it  does  not  satisfy  or  extin- 
guish the  debt.  Shields  v.  Lozear,  5 
Vr.  496,  530.     So  as  to  a  tender  after 


the  day,  if  accepted.  Ibid.  The 
effect  of  a  tender  lawfully  made  is  to 
discharge  the  debtor  from  subsequent 
interest  and  costs.  But  to  have  this 
effect,  the  amount  tendered  must  be 
kept  in  readiness,  and  on  bill  to 
redeem  or  on  plea  or  answer  setting 
up  tender,  the  money  must  be  paid 
into  court.  Shields  v.  Lozear,  7  C.  E. 
Gr.  44:7.  A  mere  offer  to  pay  money 
is  not  a  tender.  Woodruff  v.  Depue,  1 
McCart.  168 ;  but  a  refusal  to  accept 
is  a  sufficient  excuse  for  not  making 
an  actual  tender.  Thome  v.  Mosher, 
5  C.  E.  Gr.  257  ;  Eendee  v.  Hove  6 
Stew.  Eq.  92.  To  make  a  tender 
valid,  the  debt  must  be  due  at  the 
time  of  the  tender.  Tillou  v.  Britton, 
4  Sal.  120.  It  is  provided  by  statute 
that  where  any  action  shall  be 
brought  on  any  bond  for  payment  of 
money  secured  by  mortgage,  or  per- 
formance of  the  covenants  therein 
contained,  or  where  any  action  of 
ejectment   shall   be   brought   by   any 


346  FORMS   OF   PLEADIJSG8. 

admitted  to  be  true,)  that  the  statements  and  allegations  con- 
tained in  the  said  bill  of  complaint,  that,  &c.,  [specify  them,)  are, 
and  each  of  them  is,  as  he  believes,  true." 

And  this  defendant,  further  answering,  admits,  that  the  sum 
of  dollars,  the  interest  for  months  on  the  principal 

sum  of  dollars,  mentioned  in  said  bond,  became  due  on 

the  day  of  ,  eighteen  hundred  and  .     And 

he  further  says,  that  on  the  day  of  ,  eighteen  hun- 

dred and  ,  at  the  residence  of  said  complainant,  in  the 

township  of  ,  in  the  county  of  ,  and  State  of  New 

Jersey,  within  days  after  the  same  became  due,  and  before 

the  commencement  of  this  action,  he  ofifered  to  pay,  and  tendered 
to  said  ,  and  also  to  said  ,  the  said  sum  of 

dollars,  being  the  said  interest  for  months  on  the  principal 

of  said  bond,  as  and  for  the  payment  of  the  same,  and  the  said 
and  ,  each  and  both  of  them,  then  and  there  wholly 

refused  to  receive  the  same.  And  this  defendant  further  says, 
that  ever  since  said  day  of  ,  the  time  of  said  oifer 

to  pay  and  tender,  he  has  at  all  times  been  ready  to  pay  the 
same,  and  is  still  ready  so  to  do,  and  now  brings  the  same  into 
court. 

mortgagee  or  his  heirs,  executors,  ad-  brought   into  court  shall   be  deemed 

ministrators  or  assigns,  for  the  recov-  a   full   satisfaction   and   discharge  of 

ery  of  the  possession  of  any  mortgaged  the    mortgage  ;    and    thereupon    the 

land,  &c.,  and  no  suit  shall  be  then  mortgagee    shall     be     compelled     to 

depending  in  the  court  of  equity  for  reconvey  and  surrender  the  premises, 

or  touching  the  foreclosing  or  redeem-  Rev.,  ^'Mortgages,"  |    1.     This  act   is 

ing  of  such  mortgaged  land,  &c.,  if  the  not  to  affect  a  subsequent  mortgagee, 

person  having  right  to  redeem  such  nor    to   extend    to  cases   where    the 

lands,  &c.,  and  who  shall  appear  and  equity  of  redemption  is  controverted, 

become    defendant    in    such     action,  or   the   money   due   is   not  adjusted. 

shall,  at  any  time  pending  such  action.  Id.,  I  3.     The  first  section  cited  above 

pay  to  such  mongagee,  or  in  case  of  was  not  intended  to  supplant  bills  of 

his   refusal,   shall    bring    into    court  redemption   in   the   court   of   equity, 

where  such  action  shall  be  depending,  where  the  remedy  is  complete.   Shields 

all  the  principal  moneys  and  interest  v.  Lozear,  5  Vr.  496,  530.     Nor  does 

due  on  such   mortgage,  and   also  all  it  apply  to  a  case  in  which  the  mort- 

such  costs  as  have  been  expended  in  gagor   is   himself   the   actor.     Ibid.; 

any  suits  at  law  or  in  equity  upon  but  see  Bev.  Sup.,  "Mortgages,"  ^§  6,  7. 
such  mortgage ;  the  moneys  so  paid  or 


FORECLOSURE.  347 

And  this  defendant,  further  answering,  says,  that  by  reason  of 
said  oifer  by  him  to  pay  said  sum  of  dollars  for  the  said 

months'  interest,  and  the  tender  of  said  sum  therefor,  on 
said  day  of  ,  eighteen  hundred  and  ,  and 

within  days  after  the  same  became  due,  and  the  refusal  of 

said  to  receive  the  same,  as  above  set  forth,  the  said  com- 

plainant was  and  is  precluded  from  the  exercise  of  any  alleged 
right  to  elect  that  the  whole  principal  sum  in  said  bond  men- 
tioned, shall  be  due ;  and  that  said  attempted  election,  and  the 
commencement  and  prosecution  of  this  suit,  is  contrary  to  law, 
and  against  equity  and  good  conscience ;  and  he  denies,  &c.,  that 
said  principal  sum  is  now  due  (conclude  as  on  page  107,  ante. 
Add  affidavit  of  verification.) 

Interlocutory  decree  where  there  are  non-resident 
and  also  infant  defendants,  and  the  money  secured 
by  the  mortgage  is  due.(a) 

{Title  of  cause.) 

This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  that  process  of  subpoena 
for  the  appearance  of  the  defendants  has  been  duly  issued,  and 

(a)  In  all  suits  for  the  foreclosure  the  complainant's  bill  shall  be  ordered 
or  satisfaction  of  a  mortgage,  when  the  to  be  taken  pro  confesso  against  a  de- 
complainant's  bill  shall  be  ordered  to  fendant,  where  there  are  no  infant 
be  taken  as  confessed,  or  the  defend-  defendants,  and  there  shall  be  a  refer- 
ant  shall  make  default  at  the  hearing,  ence  to  a  master  ordered  in  the  cause, 
and  the  whole  amount  of  the  debt  in-  the  complainant  may  proceed  before 
tended  to  be  secured  by  the  mortgage  the  master,  without  notice  thereof  to 
shall  have  become  due,  no  order  of  such  defendant,  and  it  shall  not  be  ' 
reference  to  a  master  to  ascertain  and  necessary,  upon  the  coming  in  of  the 
report  the  sum  due  to  the  complainant  master's  report,  to  enter  a  rule  to  con- 
shall  be  necessary,  unless  specially  firm  the  same  nisi,  or  to  set  the  cause 
ordered  by  the  court ;  but  a  report  by  down  preparatory  to  further  direc- 
a  master  being  made  of  the  amount  tions,  or  to  a  final  decree  against  such 
due  upon  the  mortgage,  the  same,  if  defendant ;  but  the  complainant  shall, 
no  cause  to  the  contrary  be  shown,  without  further  notice,  be  entitled  to 
shall  be  filed  of  course,  and  without  a  final  decree.  Eule  22.  In  a  case 
any  motion  or  rule  for  that  purpose  or  within  the  twenty-second  rule,  if  ex- 
for  confirmation,  and  a  decree  made  ceptions  are  filed  to  the  report,  the 
accordingly.   Rule  21.   In  cases  where  complainant  may  set  the  cause  down 


348 


FORMS   OF   PLEADINGS. 


returned  served  upon  ,  of  the  defendants  in  this 

cause ;  and  that  due  notice  of  the  order  of  this  court,  made  on 
the 


day  of 


last  past,  directing 


,  another  of  the 


preparatory  to  further  directions  or  to 
a  final  decree ;  and  if  the  exceptions 
be  overruled,  may  get  a  final  decree 
at  the  term  at  which  the  cause  is  so 
set  down.  Brundage  v.  Goodfellow,  4 
Hal.  Ch.  513.  In  suits  for  the  satis- 
faction of  a  mortgage,  when  an  appli- 
cation shall  be  made  for  the  appoint- 
ment of  a  guardian  for  an  infant 
defendant,  as  provided  for  in  the 
sixty-fourth  rule,  or  when  it  shall 
appear  by  affidavit,  to  the  satisfaction 
of  the  Chancellor,  that  notice  cannot 
be  served,  as  mentioned  in  that  rule, 
the  Chancellor  may,  on  the  applica- 
tion of  the  complainant,  appoint  the 
clerk  of  the  court  guardian  ad  litem 
for  such  infant,  whose  duty  it  shall  be, 
if  no  application  shall  be  made,  on 
behalf  of  the  infant,  for  the  appoint- 
ment of  a  guardian  within  the  time 
allowed  by  law  for  such  infant  to 
answer,  plead  or  demur  to  the  bill,  to 
enter  an  appearance  for  the  infant  to 
the  suit ;  after  which  the  complainant 
may,  if  the  suit  is  against  the  infant 
alone,  or  the  bill  shall  have  been 
ordered  to  be  taken  pro  confesso  against 
the  other  defendant  or  defendants, 
take  an  order  to  refer  the  cause  to  a 
master  to  ascertain  the  truth  of  the 
allegations  of  the  complainant's  bill, 
and  to  take  an  account  of  what  is  due 
upon  the  complainant's  mortgage,  (if 
anything,)  and  also  upon  any  other 
encumbrance,  the  amount  of  which  it 
may  be  necessary  to  ascertain,  and  if 
more  encumbrances  than  one,  to 
report  their  several  priorities ;  and 
the  complainant  and  every  other  per- 
son setting  up  an  encumbrance  before 
the  master,  affecting  the  estate  or 
interest  of  such  infant,  shall  prove  his 


demand  before  the  master;  and  the 
master  may,  if  he  thinks  proper  so  to 
do,  examine  the  complainant,  or  other 
person  setting  up  such  demand,  on 
oath  or  affirmation,  to  ascertain  the 
truth  thereof,  and  shall  report  such 
examination,  (if  any)  and  all  the 
proofs  taken  before  him,  to  the  court ; 
and  shall  also  inquire  and  report 
whether,  under  the  circumstances  of 
the  case,  a  sale  of  the  whole,  or  a  part 
only,  of  the  mortgaged  premises  is 
necessary  to  be  made,  and  any  other 
special  matter  which  the  master  may 
deem  proper  for  the  benefit  of  the 
infant ;  and,  if  no  exception  to  said 
master's  report  shall  be  filed  within 
four  days  after  the  filing  of  said 
report,  the  complainant  shall,  without 
further  notice  or  setting  down  such 
cause  for  hearing,  be  entitled  to  a  final 
decree.  Rule  65.  In  Faitoute's  Ex'rs 
V.  Haycock,  1  6r.  Ch.  105,  it  was  held 
that  on  a  bill  for  foreclosure,  against 
infants  and  others,  where  any  of  the 
defendants  have  answered,  an  order  of 
reference  to  a  master  will  not  be 
made,  except  by  consent  of  such  de- 
fendants as  have  answered,  or  their 
solicitor.  And  in  Wright  v.  McKean, 
2  Beas.  259,  that  in  a  foreclosure  suit, 
when  an  answer  has  been  filed  by  a 
junior  encumbrancer,  which  neither 
denies  the  amount  claimed  nor  the 
order  of  priority,  an  order  of  reference 
cannot  be  made  unless  by  consent, 
without  setting  the  cause  down  for 
hearing.  But  rule  29,  made  in  1877, 
provides  that  whenever,  in  a  suit  for 
foreclosure  of  mortgage,  or  for  parti- 
tion, the  answer  or  answers  shall  not 
appear  to  set  up  any  defence  or  to 
present  any  question,  except  such  as  is 


FORECLOSURE.  34^ 

defendants,  to  appear,  plead,  demur  or  answer  the  complainant's 
bill  on  or  before  the  day  of  then  next,  has  been 

duly  published,  *  and  also  mailed  to  said  last-mentioned  defend- 
ant in  the  manner  and  as  in  the  said  order  directed  and  pre- 
scribed, (or  after  *,  "  and  due  inquiry  made  for  the  residence  of 
said  defendants  in  the  manner  prescribed  by  the  rules  of  this 
court,  but  that  the  residence  or  address  of  said  last- mentioned 
defendants  cannot  be  ascertained.")  And  it  further  appearing 
that  ,  clerk  of  this  court,  has  been  appointed  guardian  ad 

litem  for  the  infant  defendants,  ,  and  has  entered  an  ap- 

pearance for  them  to  this  suit,  and  the  said  defendants,  , 

have  not,  nor  has  either  of  them,  filed  any  plea,  demurrer  or 
answer  to  said  bill  within  the  time  limited  by  law  and  said 
order,  but  have  wholly  failed  and  neglected  so  to  do :  *  It  is 
thereupon,  on  this  day  of  ,  eighteen  hundred  and 

,  ordered,  adjudged  and  decreed  that  the  said   bill  be 
taken  as  confessed  against  the  said  ,  and  that  it  be  referred 

to  ,  one  of  the  masters  of  this  court,  to  ascertain   [the 

truth  of  the  allegations  of  the  complainant's  bill,  and  ascertain] 
{if  there  are  no  infant  defendants,  the  words  in  brackets  will  be 
omitted)  and  report  the  amount  due  to  the  said  complainant  for 
principal  and  interest  upon  the  mortgage  held  by  upon 

the  premises  mentioned  and  described  in  the  said  bill  of  com- 
plaint, and  also  the  amount  due,  if  anything,  to  the  said 
and  upon  respective  mortgage  and  judgment,  and 

the  appropriate  subject  of  a  reference  time  to  answer  be  signed  and  filed  on 

to  a  master,  it  shall  not  be  necessary  the  same  day  with  the  signing  of  the 

to  set  the  cause  down  for  hearing  in  decree.     Emery  v.  Downing,  2   Beas. 

order  to  obtain  a  reference,  but   the  59.     On  an  application  to  open  such 

same  may  be  granted  on  motion,  on  decree,  if  it  appears,  upon  an  exami- 

notice  to  the  solicitor  or  solicitors  of  nation  of  the  answer,  that  it  contains 

the  answering   defendant   or   defend-  no  valid  ground  of  defence,  the  decree 

ants,  (or  to  such  defendant  or  defend-  will  not  be  opened.     Ibid. 
ants  if  appearing  in   person,)  and  if  Usually,  where  an  encumbrancer  in 

the   reference   be   ordered,  the  cause  his   answer    prays   for   a    decree,    an 

may  proceed  under  it,  as  provided  by  order  of  reference   is   made   without 

the  twenty-third  rule.     Hule  29.     A  any  other  formal  consent  being  filed, 

decree  pro  confesso,  signed   after   the  it  being  understood  that  the  encum- 

time   for   answering   has   expired,   is  brancer   is    entitled    to    a    summons 

regular,  although  an  order  for  further  before  the  master. 


350 


FORMS   OF   PLEADINGS. 


to  report  accordingly ;  and  also  to  ascertain  and  report  the  order 
and  priority  of  the  said  several  mortgages  and  judgment  respec- 
tively, and  whether  they  all  embrace  the  same  premises ;  and 
whether  the  said  mortgaged  premises  should  be  sold  together  or 
in  parcels,  and  if  in  parcels,  in  what  order,  ["  and  any  other 
special  matter  he  may  deem  proper,  or  which  shall  appear  for 
the  benefit  of  the  infant  defendants  ; "]  and  that  the  said  master 
do  make  his  report  with  all  convenient  speed.  And  all  further 
equity  is  reserved  until  the  coming  in  of  the  said  master's  report. 


Decree  pro  confesso  and  reference  in  a  foreclosure 

case,  where  the  money  secured  by  the  mortgage  is 

not  all  due. (a) 

{Title  of  cause.) 

As  in  preceding  form  to  *,  then,  "  and  that  the  whole  money 
intended  to  be  secured  by  the  mortgage  in  the  said  bill  men- 
tioned to  have  been  made  and  executed  by  the  said  to  the 


(a)  When  a  decree  of  the  Court  of 
Chancery  shall  be  made  for  the  sale  of 
mortgaged  premises  (in  cases  where 
the  whole  sum  secured  by  the  mort- 
gage is  not  due)  either  for  non-pay- 
ment of  any  portion  or  installment  of 
the  debt  or  demand  intended  to  be 
secured  by  the  mortgage,  or  the  non- 
payment of  interest  due,  or  both,  and 
it  shall  appear  to  the  court  that  a  part 
of  the  mortgaged  premises  cannot  be 
sold  to  satisfy  the  amount  due  without 
material  injury  to  the  remaining  part 
thereof,  and  that  it  is  just  and  rea- 
sonable that  the  whole  of  the  mort- 
gaged premises  should  be  sold  to- 
gether, it  shall  and  may  be  lawful  for 
the  said  court  to  decree  a  sale  to  be 
made  of  the  whole  of  the  mortgaged 
premises,  and  to  apply  the  proceeds  of 
the  sale  of  said  premises,  or  so  much 
thereof  as  shall  be  necessary,  as  well 
to  the  payment  of  the  interest,  install- 
ments or  portions  then  due,  and  also 
the  costs  then  due  and  payable,  as  to 


the  payment  of  the  whole  or  residue 
of  the  debt  or  demand  which  hath  not 
become  due  and  payable,  and  the 
residue  of  the  proceeds  of  such  sale  to 
be  paid  to  the  person  or  persons 
entitled  to  receive  the  same,  or  to  be 
brought  into  court  to  abide  the  further 
order  of  the  court,  as  the  equity  and 
circumstances  of  the  case  require ; 
provided  always,  that  when  the  resi- 
due of  the  debt  or  demand  intended 
to  be  secured  by  the  said  mortgage,  is 
payable  at  a  future  day,  without  in- 
terest, and  the  mortgagee  is  willing  to 
receive  the  same,  the  court  shall 
deduct  a  rebate  of  legal  interest  for 
what  the  mortgagee  shall  receive  on 
the  said  debt  or  demand,  to  be  com- 
puted from  the  time  of  the  actual  pay- 
ment thereof  to  the  time  such  residue 
of  the  debt  or  demand  would  have 
become  due  and  payable.  Bev., 
"Chancenj,"  §  74.  For  proceedings 
for  default  of  payment  of  an  install- 
ment, see  American  Ins.  Co.  v.  Ryer- 


FORECLOSURE.  351 

complainant,  is  not  yet  payable :  It  is,  on  this  day  of  , 

&c.,  ordered,  adjudged  and  decreed,  that  the  complainant's  bill 
be  taken  as  confessed  against  the  said  defendant,  and  that  it  be 
referred  to  ,  one  of  the  masters  of  this  court,  to  ascertain 

and  report  what  is  now  due  and  payable  to  the  complainant  for 
principal  and  interest  upon  his  said  mortgage ;  and  also  the 
amount  to  grow  due  and  payable  thereon,  and  when  payable, 
and  whether  with  interest  or  not.  And  in  order  that  it  may 
appear  to  the  court  whether  a  part  of  the  mortgaged  premises 
can  be  sold  to  satisfy  the  amount  now  payable  to  the  complain- 
ant, without  material  injury  to  the  remaining  part,  or  whether  it 
is  just  and  reasonable  that  the  whole  of  the  mortgaged  premises 
should  be  sold  together,  it  is  further  ordered  and  decreed  that 
the  said  master  do  examine  and  inquire  into  the  nature,  value 
and  situation  of  the  mortgaged  premises,  and  report  to  this  court 
whether  a  competent  part  thereof  can  be  sold  separately,  without 
material  injury  to  the  remaining  part  thereof,  to  raise  and  satisfy 
the  principal  and  interest  which  have  become  due  to  the  com- 
plainant on  his  mortgage,  with  his  costs  of  suit,  or  whether  it  is 
just  and  reasonable  that  the  whole  of  the  mortgaged  premises 
should  be  sold  together,  and  if  so,  that  he  state  shortly  the  facts 
and  reasons  upon  which  his  opinion  shall  be  founded ;  and  if 
the  master  should  be  of  opinion  that  only  a  part  of  the  mort- 

son,   2   Hal.    Ch.   9.     The   condition  obligor    failed    to    pay    his    interest 

under  which  the  forfeiture  is  claimed  within  the  thirty  days  limited  by  the 

must  be  explicit.     Ackens  v.  Winston,  condition   of    the   bond,    equity   will 

7    C.  E.  Gr.  444.     Equity   will   not  relieve  him  from  the  forfeiture.     3Ie- 

enforce  a  forfeiture  of  the  credit  if  the  Cottej-  v  De  Groot,  4  C.  E.  Gr.  72;   A 

omission   to   pay  interest  within  the  receipt  of  interest  upon  a  mortgage, 

time  specified  has  been  occasioned  by  without  claim  of  forfeiture,  after  the 

the  acts  or  declarations  of  the  com-  time  when,  by  its  terms,  the  principal 

plainant.     De  Groot  v.  McCotter,  4  C.  became  due,  and  endorsing  the  pay- 

E.    Gr.    531.      Relief    will    not    be  ment  of  the  interest  on  the  mortgage, 

afforded  in  equity,  on  the  ground  of  is  a  waiver  of  the  forfeiture.     Sire  v. 

mistake,  where   the   defendant's   lia-  Wightman,    10    C.   E.    Gr.   102;    see 

bility  is  the  result  of  pure  carelessness.  Martin  v.  Melville,  3  Stoch.  222.     The 

Voorhis  V.  Murphy  11   C.  E.  Or.  434 ;  time  specified  for  the  payment  of  a 

Spring    v.    Fisk,   6    C.   E.    Gr.    175.  mortgage  may  be  extended  by  parol. 

Where,  in  consequence  of  an  agree-  Tompkins  v.  Tompkins,  6    C.  E.  Gr. 

ment  by  the  obligee  with  the  obligor,  338 ;  Measmall  v.  Pearce,  4  All.  Rep. 

that  the   former   would   call   at   the  678 ;   Van  Syckel  v.  O'Hearn,  5  Dick. 

office  of  the  latter  for  the  interest,  the  Ch.  Hep.  173. 


352  FOEMS   OF   PLEADINGS. 

gaged  premises  ought  to  be  sold  to  satisfy  the  amount  which  ha& 
become  due  to  the  complainant,  then  that  he  report  to  this  court 
what  part  thereof  ought  to  be  sold  for  that  purpose,  to  the  end 
that  such  further  decree  may  be  made  as  the  Chancellor  shall  think 
equitable  and  just;  and  that  the  master  make  his  report  to  this 
court  with  all  convenient  speed.  And  all  further  equity  and  direc- 
tions are  reserved  until  the  coming  in  of  the  said  master's  report. 

Master's  report  where  there  is  no  order  of  refer- 

^^G^'i^)  {Title  of  cause.) 

T,             ,  one  of  the  masters  in  chancery  of  the  State  of  New 
Jersey,  do  hereby  certify  and  report  to  his  Honor  the  Chancellor, 
that  I  have  seen  and  inspected  the  bond  and  mortgage  (marked 
Exhibits             and             )  mentioned  in  the  bill  of  complaint 
in  this  cause ;  and  that  there  is  due  to  the  said  complainant,  on 
this  day,  on  the  bond,  the  payment  whereof  was  intended  to  be 
secured  by  the  said  mortgage,  the  sum  of             dollars,  for 
principal  and  interest,  as  by  the  schedule  hereto  annexed  will 
more  fully  appear.     All  which  is  respectfully  submitted,  this 
day  of             ,  &c.                         {Signature  of  master.) 
Schedule. 
Bond  bearing  date  the             day  of            ,  18     ,  in 
the  penal  sum  of  $              ,  conditioned  for  the 
payment  of  $             ,  in             year     ,  with  law- 
ful interest,  secured  by  the  mortgage  in  the  com- 
plainant's bill  mentioned $ 

Interest  paid  to  ,  and  endorsed  upon  said  bond, 

Interest  from  to  

Amount  due  complainant  this,  &c. $ 

(a)  In  all  suits  for  the  foreclosure  or  plainant   shall    be   necessary,   unless 

satisfaction  of  a  mortgage,  when  the  specially  made   by  the  court ;   but   a 

complainant's  bill  shall  be  ordered  to  report  by  a  master  being  made  of  the 

be  taken  as  confessed,  or  the  defend-  amount  due  upon  the  mortgage,  the 

ant  shall  make  default  at  the  hearing,  same,  if  no  cause  to  the  contrary  be 

and   the   whole   amount  of  the   debt  shown,  shall  be  filed  of  course,  and 

intended  to  be  secured  by  the  mort-  without  any  motion  or  rule  for  that 

gage  shall  have  become  due,  no  order  purpose   or   for  confirmation,  and   a. 

of  reference  to  a  master  to  ascertain  decree  made  accordingly.     Eule  21. 
and  report  the  sum  due  to.  the  com- 


FORECLOSURE.  353 

Final  decree  pursuant  to  foregoing  report. 

{Title  of  cause.) 

This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  that  process  of  subpoena 
for  the  appearance  of  the  defendants  has  been  duly  issued,  and 
returned  served  by  the  sheriff  of  the  county  of  ;  and  that 

the  defendants  have  neglected  to  file  any  plea,  demurrer  or 
answer  to  the  complainant's  bill  within  the  time  limited  by  law  : 
Whereupon,  and  upon  reading  and  fi,ling  a  report,  made  in  this 
cause  by  ,  one  of  the  masters  of  this  court,  bearing  date 

the  day  of  ,  eighteen  hundred  and  ,  whereby 

it  appears  that  there  is  due  to  the  complainant,  for  principal  and 
interest  on  his  mortgage,  the  sum  of  dollars,  and  no  cause 

being  shown  or  appearing  to  the  contrary :  It  is,  on  this 
day  of  ,  eighteen   hundred   and  ,  by  his  Honor 

,  Chancellor  of  the  State  of  New  Jersey,  ordered,  ad- 
judged and  decreed,  that  the  said  bill  of  complaint  be  taken  as 
confessed ;  and  that  the  said  master's  report,  and  all  the  matters 
and  things  therein  contained,  do  stand  confirmed;  and  that  the 
complainant  is  entitled  to  have  the  said  sum  of  dollars, 

with  lawful  interest  thereon,  to  be  computed  from  the  date  of 
said  report,  together  with  his  costs  of  this  suit,  raised  and  paid 
out  of  the  mortgaged  premises. 

"And  it  is  accordingly  further  ordered,  adjudged  and  decreed, 
that  so  much  of  the  said  mortgaged  premises  as  will  be  sufficient 
to  raise  and  satisfy  the  said  debt,  interest  and  costs,  be  sold ;  and 
that  a  writ  oi  fieri  facias  do  issue  for  that  purpose  out  of  this 
court,  directed  to  the  sheriff  of  the  county  of  ,  {where  the 

land  lies,)  commanding  him  to  make  sale  according  to  law  of  so 
much  of  the  said  mortgaged  premises  as  will  be  sufficient  to  sat- 
isfy the  said  debt,  interest  and  costs,  and  that  he  pay  the  same 
to  the  complainant  or  to  his  solicitor;  and  that  in  case  more 
money  should  be  raised  by  the  sale  than  shall  be  sufficient  to 
answer  such  payment,  such  surplus  money  be  brought  into  this 
court,  and  deposited  with  the  clerk,  to  abide  the  further  order 
of  this  court,  unless  otherwise  previously  disposed  of  by  order  of 


354 


FOEMS   OF   PLEADINGS. 


the  court ;  and  the  said  sheriflP  is  to  make  return  to  this  court  of 
his  proceedings  by  virtue  of  the  said  writ. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the 
defendants  stand  absolutely  debarred  and  foreclosed  of  and  from 
all  equity  of  redemption  of,  in  and  to  so  much  of  the  said 
mortgaged  premises  as  shall  be  sold  as  aforesaid  by  virtue  of  this 
decree.  {For  paragraph  as  to  costs  and  counsel  fees,  see  page 
364.) 

Master's    summons    on    reference    in    foreclosure 

suit.(a) 

( Title  of  cause.) 

To  ,  one  of  the  defendants  in  the  above-stated  cause,  {or 

his  solicitor,  as  the  case  may  be :) 
Sir — By  virtue  of  an  order  of  reference  made  in  the  above 
cause,  you  are  hereby  summoned  to  be  and  appear  before  me, 
at  my  office,  in  ,  on  ,  the  day  of  , 

eighteen  hundred  and  ,  at  o'clock  in  the  ,  at 


(o)  All  summonses  to  attend  a  mas- 
ter shall  be  served  on  the  solicitor  of 
the  adverse  party,  if  a  solicitor  be 
concerned  for  him ;  if  no  solicitor  be 
concerned  for  him,  the  service  may  be 
on  the  party  or  left  at  his  usual  place 
of  residence,  or  if  not  resident  in  this 
state,  by  setting  up  the  same  in  the 
office  of  the  clerk  in  chancery.  Rule 
20. 

When  a  matter  is  referred  to  a 
master  of  the  court  to  examine  and 
report  upon,  he  shall,  if  notice  be 
necessary,  assign  a  day  and  place 
to  hear  the  parties ;  and  the  party 
obtaining  the  reference,  or  who  shall 
be  ordered  to  procure  the  master's 
report,  shall  serve  the  adverse  party, 
at  least  four  days  exclusive  before 
the  day  assigned  for  the  hearing, 
■with  a  summons,  issued  by  the  mas- 
ter, requiring  his  attendance  at  such 
time  and  place,  and  make  proof 
thereof  to  the  master;  and  there- 
upon, if  the   party  summoned   shall 


not  appear,  or  good  cause  shall  not 
be  shown  why  he  does  not,  the  mas- 
ter may  proceed  ex  parte ;  and  if  the 
party  serving  the  summons  shall  not 
appear  at  the  time  and  place,  or  show 
cause  why  he  does  not,  the  master 
may  either  proceed  ex  parte,  or  the 
party  obtaining  the  summons,  and  not 
appearing,  shall  lose  the  benefit  of  the 
reference,  at  the  election  of  the  other 
party.  Rule  43.  Where  encumbran- 
ces, held  by  defendants,  are  set  out  in 
a  bill  with  suflacient  particularity, 
with  their  order  of  priority,  and  a  de- 
cree pro  confesso  has  been  taken,  and  a 
reference  made,  the  master,  by  issu- 
ing a  summons  to  a  defendant  en- 
cumbrancer to  appear  before  him, 
cannot  put  such  defendant  in  a  posi- 
tion to  lose  his  rights  admitted  by  the 
bill,  and  established  by  the  decree 
j^ro  confesso,  by  failing  to  attend  the 
master.  Mulford  v.  Williams,  4  Hal. 
Ch.  536 ;  see  rule  24. 


FORECLOSURE. 


355 


which  time  I  shall  proceed  to  [ascertain  the  truth  of  the  allega- 
tions of  complainant's  bill  in  said  cause,  and  to]  {the  clause  in 
brackets  to  he  inserted  only  in  cases  where  there  are  infant  defend- 
ants,) take  an  account  of  what  is  due  to  the  complainant  for 
principal  and  interest  upon  mortgage  in  his  bill  of  com- 

plaint mentioned,  and  also  what  is  due  upon  the  other  encum- 
brances in  said  bill  mentioned,  and  the  priority  of  said  encum- 
brances, and  proceed  to  report  upon  the  same,  and  the  other 
matters  referred  to  me.  (Signature.) 


Dated 


18 


Master's  report  in  foreclosure  where  mortgage  is 
due  and  there  are  infant  defendants. (a) 

(Title  of  cause.) 
In  pursuance  of  an  order  of  this  court,  entered  in  the  above 
cause,  bearing  date  the  day  of  ,  eighteen  hundred 


and 


I  have  been  attended  by  the  solicitor  of  the  com- 


(a)  A  court  of  equity  will  not  make 
a  decree  against  an  infant,  except  on 
full  proof.  Walton  v.  Coulsoa,  1  Mc- 
Lean 120.  For  form  of  order  of  refer- 
ence, and  duty  of  master  in  cases  where 
infants  are  parties  defendant,  see  page 
347,  ante,  (note).  In  cases  where  the 
complainant's  bill  shall  be  ordered  to 
be  taken  pro  confesso  against  a  defend- 
ant, where  there  are  no  infant  defend- 
ants, and  there  shall  be  a  reference  to 
a  master  ordered  in  the  cause,  the 
complainant  may  proceed  before  the 
master  without  notice  thereof  to  such 
defendant,  and  it  shall  not  be  neces- 
sary, upon  the  coming  in  of  the  mas- 
ter's report,  to  enter  a  rule  to  confirm 
the  same  nisi,  or  to  set  the  cause  down 
preparatory  to  further  directions,  or  to 
a  final  decree  against  such  defendant ; 
but  the  complainant  shall,  without 
further  notice,  be  entitled  to  a  final 
decree.  Bute  22.  Where  the  bill  in 
a  foreclosure  suit  shall  be  ordered 
to  be  taken  as  confessed  against   a 


defendant,  no  report  or  decree  shall  be 
made  by  which  his  rights  or  claims 
are  postponed  to  those  of  any  other 
defendant,  unless  the  priority  of  the 
rights  or  claims  of  such  other  defend- 
ant and  the  facts  upon  which  it  de- 
pends, are  distinctly  set  forth  in  the 
bill.  And  any  controversies  between 
such  defendants  may  be  settled  upon 
application  for  the  surplus  moneys. 
Eide  24.  In  all  cases  where  the  com- 
plainant's bill  shall  be  taken  jyro  con- 
fesso against  the  mortgagor,  and  other 
defendants  claiming  to  be  encumbran- 
cers file  their  answer  or  answers  set- 
ting up  said  encumbrances,  if  the 
order  of  priority,  shall  not  appear, 
upon  the  face  of  the  pleadings,  to 
be  disputed  by  the  parties,  either 
complainant  or  defendant,  and  the 
amounts  respectively  claimed  as  due, 
do  not  appear  to  be  denied,  and  a 
report  be  made  upon  an  order  of  ref- 
erence to  a  master,  it  shall  not  be 
necessary  to  enter  a  rule  nisi  to  con- 


356 


FORMS   OF    PLEADINGS. 


plainant  and  by  the  solicitor  of  the  defendant,  ,  {or,  "  the 

defendant,  ,  in  person,")  (no  person  attending  for  , 

guardian  ad  litem  of  the  infant  defendants,  although  duly  sum- 


firm  said  report,  or  to  set  the  cause 
down  for  hearing  on  the  same ;  but  if 
no  exceptions  to  said  report  be  filed 
within  four  days  after  the  filing  of 
said  report,  the  complainant  shall, 
without  further  notice,  be  entitled  to  a 
final  decree.  Rule  23.  Orders  nisi, 
when  necessary  to  confirm  reports  of 
masters  need  not  be  served .  upon  a 
defendant  who  has  been  notified  to 
attend  the  master  respecting  the  mat- 
ter referred,  and  has  refused  or  neg- 
lected to  attend,  but  shall  become  ab- 
solute of  course  as  to  such  defendant, 
unless  cause  be  shown  to  the  contrary. 
Rule  25.  Where  a  defendant  who  was 
entitled  to  notice  of  proceedings  be- 
fore the  master,  attends  in  pursuance 
of  such  notice,  a  rule  to  confirm  the 
report  of  the  master  nisi  should  be 
entered  on  the  part  of  the  complain- 
ant. Brundage  v.  Goodfelloiv,  4  Sal. 
Ch.  513 ;  Miller's  Adm'x  v.  Miller,  11 
a  E.  Gr.  423.  When,  by  a  decretal 
order  of  the  court,  any  inquiry  before 
a  master  is  directed  to  be  made  in  a 
cause,  and  the  examination  of  wit- 
nesses shall  be  necessary  to  obtain  the 
proper  information,  such  examination, 
.if  required  by  either  party,  shall,  at 
the  expense  of  the  party  requiring  it, 
be  reduced  to  writing  by  the  master, 
in  the  form  of  depositions,  and  returned 
and  filed  with  the  report.  Rule  44. 
In  an  ordinary  foreclosure  case,  after  a 
decree  pro  con/esso,  the  mortgage  itself 
is  sufiicient  evidence,  but  in  other 
cases  there  must  be  an  order  to  take 
proofs.  Rowers  v.  Rowers,  July,  1829. 
In  a  foreclosure  suit  the  complainant, 
in  practice,  recovers  installments  of 
principal  as  well  as  of  interest  falling 
due  after  the  commencement  of  the 


suit.  If  the  mortgage  is  forfeited,  and 
the  complainant  is  entitled  to  a  decree 
of  foreclosure  at  the  time  of  the  com- 
mencement of  the  suit,  a  decree  for 
the  whole  amount  due  upon  the  mort- 
gage, whether  it  became  due  before  or 
after  the  commencement  of  the  suit,  is 
strictly  within  the  prayer  for  relief, 
and  such  as  the  case  stated  will  justify. 
It  becomes  simply  a  question  of  the 
amount  due  upon  the  mortgage  at  the 
date  of  the  master's  report.  Jordan  v. 
Clark,  1  a  E.  Or.  247.  The  master's 
authority  as  to  the  subjects  and  extent 
of  his  examination  and  report  is  lim- 
ited and  controlled  by  the  order  of 
reference.  Gordon  v.  Hobart,  2  Story 
243.  Exception  was  allowed  to  the 
report  of  a  master  where  he  reported 
a  sum  of  money  due  for  premiums  for 
insurance,  in  a  case  where  no  aver- 
ments were  made  in  the  bill  that  any 
premiums  for  insurance  had  been 
paid  by  complainant,  or  that  defend- 
ant had  failed  to  insure,  and  where 
complainant's  right  to  insure  was  not 
put  in  issue  by  the  pleadings,  although 
by  a  liberal  construction  of  the  order  of 
reference,  it  might  have  been  deemed 
within  the  cognizance  of  the  master. 
Stonington  Rank  v.  Ravis,  2  MeCart.  30. 
Where  the  master  has  reported  the 
amount  due  upon  several  mortgages, 
and  also  their  order  of  priority,  and 
upon  exceptions  to  the  report  the 
order  of  priority  is  changed,  a  final 
decree  may  be  taken  at  once,  with- 
out a  reference  back  to  the  master. 
Chance  v.  Teeple,  3  Gr.  Ch.  173.  The 
court  will  not  refer  accounts  back  to 
a  master  on  grounds  which  can  be 
taken  on  the  argument  of  exceptions  to 
his  report.    Camae  v.  Francis,  3  Wash. 


FORECLOSURE.  357 

moned,  as  by  due  aeknowledgment  of  the  summons  hereto 
annexed  appears,)  and  in  the  presence  of  the  parties  attending 
me,  I  have  considered  of  the  matters  thereby  referred  to  me. 
And  the  solicitor  of  the  complainant  produced  before  me  the 
mortgage  in  his  bill  mentioned,  bearing  date  the  day  of 

,  eighteen  hundred  and  ,  and  made  and  executed 

by  and  ,  his  wife,  to  the  said  complainant,  and 

which  said  mortgage  was  duly  acknowledged  according  to  law 
by  the  said  and  wife,  and  recorded  as  in  the  bill  men- 

tioned, as  appears  by  endorsements  thereon ;  and  the  said  com- 
plainant's solicitor  also  produced  to  me  the  bond  intended  to  be 
secured  by  the  said  mortgage,  and  which  was  proved  before  me 
by  the  oath  of  ,  one  of  the  subscribing  witnesses  thereto, 

as  appears  by  his  deposition  accompanying  this  report,  and 
making  part  thereof;  which  bond  and  mortgage  are  marked 
Exhibits  and  on  the  part  of  the  complainant.  And  I 
find  that  there  is  due  to  the  complainant  on  his  said  mortgage, 
for  principal  and  interest  on  this  day,  the  sum  of  dollars ; 

and  I  certify  and  report  that  the  schedule  hereunto  annexed, 
marked  No.  1,  and  making  part  of  this  my  report,  contains  a 
statement  and  account  of  the  principal  and  interest  money  due 
to  the  complainant  on  his  said  mortgage ;  to  which,  for  greater 
certainty,  I  refer.     And  I  further  report,  that  the  defendant, 

,  produced  before  me  the  mortgage  in  the  said  complain- 
ant's bill  referred  to,  bearing  date  the  day  of  , 
eighteen  hundred  and  ,  and  made  and  executed  by  the 
said  and  wife  to  the  said  ;  which  mortgage  was 
duly  acknowledged  according  to  law,  by  the  said  and 
wife,  before  ,  one  of  the  masters  in  chancery  of  New 
Jersey,  and  recorded  (or  "registered")  in  the  clerk's  (or  "reg- 
ister's") office  in  the  county  of           ,  on  the           day  of  , 

C.  C.  108.     Exceptions  to  a  master's  red,  are  properly  brought  before  the 

report  must  be  founded  on  the  facts  court  by  motion  to  set  aside  the  report, 

stated  in  the  report,  or  in  the  accom-  or  to  refer  it  back  to  be   perfected. 

panying  documents  and  proof.    Dexter  Douglas  v.  Merceles,  9  C.  E.  Gr.  25  ; 

V.  Arnold,  2  Sumn.  108.     Irregulari-  Miller's  Adm'x  v.  Miller,  11  C.  E.  Or. 

ties   in  the  master's  proceedings,   or  423. 
neglect  to  report  on  the  matters  refer- 


358  FORMS   OF   PLEADINGS. 

eighteen    hundred   and  ,  as   appears    by    endorsements 

thereon ;   and   the  said  also   produced    to  me   the   bond 

referred  to  in  the  last-mentioned  mortgage,  the  payment  of 
which  was  intended  to  be  secured  thereby ;  which  bond  was 
proved  before  me  by  the  oath  of  a  witness  produced  on  the  part 
of  the   said  ,  and    whose   deposition   accompanies   this 

report,  and  makes  a  part  thereof;  which  last-mentioned  bond 
and  mortgage  are  marked  Exhibits  and  on  the  part  of 

the  defendant,  .     And  I  find  that  there  is  due  to  the  said 

on  his  said  mortgage,  for  principal  and  interest,  on  this 
day,  the  sum  of  dollars ;  and  I  certify  and  report  that  the 

schedule  hereunto  annexed,  marked  No.  ,  and  making  part  of 
this  report,  contains  a  statement  of  the  principal  and  interest 
money  due  to  the  said  on  his  said  mortgage ;  to  which, 

for  greater  certainty,  I  refer.  And  I  further  certify  and  report 
that  the  same  premises  comprised  in  the  complainant's  mortgage 
are  also  comprised  in  the  mortgage  of  the  said  ,  (or  as  the 

ease  may  be,)  and  that  the  mortgage  to  the  said  complainant 
was  made  and  executed,  and  also  recorded,  prior  to  the  mortgage 
of  the  said  ,  and  is  entitled  to  priority  in  payment  {here 

state  other  encumbrances  or  liens,  if  any  ;)  and  that  *  it  is  neces- 
sary and  advisable  that  the  whole  of  the  mortgaged  premises^ 
should  be  sold  to  raise  and  pay  the  money  so  due  to  the  com- 
plainant and  to  the  said  ,  respectively,  together  with  the 
costs  of  this  suit.  {If  a  sale  of  a  part  of  the  mortgaged  premises 
will  be  sufficient,  after  *  say,  "  under  the  circumstances  of  this 
case,  it  will,  in  my  opinion,  be  sufficient  to  sell  a  part  of  the 
mortgaged  premises  to  raise  and  pay  the  moneys  due  to  the  com- 
plainant and  to  the  said  ,  respectively,  together  with  the 
costs  of  this  suit ;  and  that  it  is  for  the  benefit  of  the  infant  de- 
fendant to  make  sale,  for  that  purpose,  of  all  that  lot  of  ground," 
&c.,  {describing  particularly  the  part  to  be  sold.)  And  I  further 
certify,  that  I  know  of  no  other  special  matter  which  I  deem  it 
for  the  benefit  of  the  said  infant  defendants  to  report. 

All  which  is  respectfully  submitted,  this  day  of  , 

eighteen  hundred  and 


FORECLOSURE.  359 

Master's  report  where  money  is  not  all  due.(a) 

{Title  of  cause.)        • 

In  pursuance  of  an  order  made  in  this  cause,  bearing  date  the 
day  of  ,  eighteen  hundred  and  ,  whereby  it 

was  referred  to  the  subscriber,  one  of  the  masters  of  the  said 
court,  to  ascertain  and  report  the  amount  now  due  to  the  said 
complainant  on  his  mortgage  in  the  bill  of  complaint  in  this 
cause  mentioned,  and  also  the  amount  to  grow  due,  and  when 
payable,  and  whether  with  interest ;  or  not,  &c.,  I,  ,  do 

hereby  report  that  I  have  examined  the  matters  referred  to  me 
by  the  said  order,  and  that  the  complainant  produced  before  me 
the  three  bonds  mentioned  in  his  bill  of  complaint,  and  the 
indenture  of  mortgage  given  to  secure  the  same ;  and  that  one  of 
the  said  bonds  became  due  on  the  day  of  ,  eighteen 

hundred  and  ,  and  that  there  is  due  thereon,  at  this  date, 

for  principal  and  interest,  the  sum  of  dollars. 

And  I  further  report,  that  on  the  second  bond,  which  became 
due  on  the  day  of  ,  eighteen  hundred  and  , 

there  is  due,  at  this  date,  for  principal  and  interest,  the  sum  of 
dollars. 

And  I  further  report,  that  there  was  due  on  the  remaining 

bond,  for  interest,  on  the  day  of  last,  the  sum  of 

dollars,  and  that  the  interest  accrued  on  that  bond  from 

the  date  last  aforesaid,  to  this  date,  is  the  sum  of  dollars, 

(a)  Where  the  bond  and  mortgage  greater  than  the  interest,  deduct  the 

call  for  interest  without  naming  the  payment;    if  the   payment   does   not 

rate,  the  rate  lixed  by  the  law  at  the  equal  the  interest,  it  is  not  to  be  cred- 

date  of  the  instruments  will  be  charge-  ited  until,  with   future   payments,  it 

able.     Ackens  v.  Winslon,  7  C.  E.  Or.  equals  or   exceeds   the   interest   due. 

444 ;  Bownc  v.  Bitter,  11  C  E.  Gr  456.  Baker  v.  Baker,  4  Dutch.  13 ;  Meredith 

A  decree  will  bear  only  legal  interest  v.  Banks,  1  Hal.  408  ;  Starkv.Hunton, 

forthetimebeing.although  founded  on  2    Gr.    Ch.   300.     Where   a  creditor 

a  mortgage  lawfully  drawing  a  higher  claims   upon   a   bond    secured    by   a 

rate.     Wilson  v.  Marsh,  2  Beas.  289.  mortgage,   the  master  may  calculate 

The  true  rule  for  calculating  interest  interest   beyond   the   penalty   of    the 

where  partial    payments    have   been  bond.     Clark  v.   Lord  Abimjdon,    17 

made,  is  to  cast  the  interest  on  the  Fe.s.  106 ;  Long's  Adm.  v.  Long,  1  C. 

principal  to  the  time  of  the  first  pay-  E.  Gr.  59,  67 ;  3Iower  v.  Kip,  6  Paigt 

ment,  and  if  the  payment  equals  or  is  88. 


360  FORMS  OF   PLEADINGS. 

making  the  total  amount  of  principal  and  interest,  at  this  date, 
due  the  complainant,  dollars. 

And  I  further  report,  that  the  last-mentioned  bond  will 
become  due  on  the  day  of  ,  and  that  there  will  then 

be  due  thereon,  for  principal  and  interest,  the  sum  of 
dollars.     All  which  will   more  fully  appear  by  the  schedule 
hereto  annexed,  and  making  part  of  this  report. 

And  I  further  report,  that  I  have  examined  into  the  nature, 
value  and  situation  of  the  mortgaged  premises,  and  that  a  com- 
petent part  thereof  cannot  be  sold  to  raise  and  satisfy  the 
principal  and  interest  which  have  become  due  the  complainant 
on  his  said  bond  and  mortgage,  with  the  costs  of  suit,  without 
material  injury  to  the  remaining  part ;  but  that,  under  the  cir- 
cumstances of  the  case,  it  is  just  and  reasonable  that  the  whole 
of  the  mortgaged  premises  should  be  sold ;  and  my  reasons  for 
this  opinion  are  founded  on  the  affidavits  of  and  , 

two  disinterested  persons,  which  are  hereto  annexed. 

Respectfully  submitted,  this  day  of  ,  eighteen 

hundred  and 

[Annex  schedule  shotvlng  calculation  of  interest,  &e.,  as  in  form 
on  page  352.) 

Master's  report  for  the  sale  of  the  residue  of  mort- 
gaged premises,  to  satisfy  amount  becoming  due 
after  former  decree  and  sale  of  part. 

(Title  of  cause.) 

Whereas,  by  a  decree  made  in  the  above  cause,  on  the 
day  of  ,  eighteen   hundred   and  ,  it   was,  among 

other  matters,  ordered,  adjudged  and  decreed,  that  the  com- 
plainant should  be  at  liberty  thereafter,  from  time  to  time,  to  go 
before  a  master  of  this  court,  if  it  should  be  necessary,  upon  the 
foot  of  the  decree,  and  obtain  a  report  as  to  the  amount  that 
should  be  due  and  payable  on  his  bond  and  mortgage  therein 
mentioned,  and  also  as  to  what  part  of  the  said  mortgaged  prem- 
ises it  would  be  proper  to  sell  to  satisfy  the  same,  with  costs : 

Now,  therefore,  I,  ,  one  of  the  masters  of  this  court, 

do   respectfully  report,  that,  in   pursuance  of  said   order,  the 


FORECLOSURE.  361 

solicitor  of  the  said  complainant  this  day  came  before  me,  and 
produced  the  said  decree,  and  also  the  bond  and  mortgage  in  the 
complainant's  bill  mentioned,  given  by  ,  the  defendant, 

to  the  said  complainant,  dated  the  day  of  ,  eighteen 

hundred  and  ,  and  I  have  inspected  the  same,  and  find 

that  since  the  last  report,  in  the  said  decree  mentioned,  the 
remainder  of  the  sum  intended  to  be  secured  by  the  said  mort- 
gage has  become  due  and  payable,  and  that  there  is  due  to  the 
complainant,  at  this  date,  for  principal  and  interest  upon  the 
bond  secured  by  the  complainant's  said  mortgage,  the  sum  of 
dollars,  and  that  the  whole  of  the  said  mortgaged  prem- 
ises not  heretofore  sold,  that  is  to  say,  (describe  the  premises 
remaining  unsold,)  should  be  sold  to  satisfy  the  said  debt  and 
interest. 

And  T  further  report,  that  the  schedule  hereunto  annexed, 
and  making  part  of  this  report,  contains  a  statement  of  the 
principal  and  interest  money  remaining  due  the  said  on 

his  said  mortgage,  and  to  which,  for  greater  certainty,  I  refer. 

Respectfully  submitted,  this  day  of  ,  eighteen 

hundred  and 

(Signature.) 

Final  decree  for  sale  of  whole  of  mortgaged  prem- 

ises.(a) 

(Title  of  cause.) 

This  cause  coming  on  to  be  heard  in  the  presence  of  , 

of  counsel  with  the  complainant,  and  it  appearing  that  the  com- 

(a)  The  decree  must  conform  to  the  be  decreed  to  be  sold,  unless  the  first 

bill,  and  be  warranted  by  it,  both  in  mortgagee   comes  in  with  his   mort- 

the  relief  and  in  the  grounds  of  relief.  gage,  and  thereby  consents  that  a  de- 

Eelief  not  embraced  in  the  prayer  of  cree  shall  be  made  for  the  sale  of  the 

the  bill  cannot  be  decreed,  nor  can  re-  property  to  pay  his  mortgage.     Roll 

lief  asked  for  be  granted  upon  grounds  v.  Smalley,  2  Hal.  Ch.  464 ;  see  also 

not  disclosed  by  the  bill.     Iltjerson  v.  Hudnit  v.  Naah,  1  (7.  E.  Or.  550.     A 

Adams,  2  Hal.  Ch.  618;  and  see  Jor-  subsequent  mortgagee  may,  however, 

dan  V.  Clark,  1  C.  E.  Or.  243 ;  Ely  v.  in  a  bill  to  foreclose,  seek  relief  against 

Perrine,  1  Gr.  Ch.  396.     On  a  mere  the   prior   mortgagee,  and  of  course 

foreclosure  bill    by   a  second    mort-  may  make   him   a   party.     Gihon  v. 

gagee,  nothing  more  than  the  equity  Belleville   Co.,   3  Hal.   Ch.  531,   536. 

of  redemption  mortgaged  to  him  can  Where   a    subsequent    encumbrancer 


362 


FOEMS   OF   PLEADINGS. 


plainant's  bill  has  been  heretofore  taken  as  confessed  against  the 
defendant  {omitting  the  names  of  the  infant  defendants,  if  any:) 
whereupon,  and  upon  reading  a  report  upon  file,  made  by  , 

in  chancery  for  the  payment  of  money 
shall  be  paid  and  satisfied,  satisfaction 
shall  be  entered  on  the  margin  of  the 
enrollment    by   the    party   receiving 
satisfaction,  or  his  solicitor,  or  by  the 
clerk  by  virtue  of  a  warrant  of  attor- 
ney  from   the   party,  duly    acknowl- 
edged or  proved  in  the  same  manner 
as  satisfaction  is  entered  of  judgments 
at  law.     Bev.,  "  Chancery"  §  77.     If  a 
decree  be  entered  by  a  written  agree- 
ment between  the  parties,  their  signa- 
tures should  be  proved  by  affidavit.- 
Aliter,  where  such  agreement  is  signed, 
by  their  solicitors.     Shute  v.  Gmtin,. 
Oct.,  1822.     A  party  to  a  foreclosure 
suit  is  bound  by  the  decree,  and  can- 
not  contest   the  title  of  a  purchaser 
under   it,  while   the  decree  and   the 
sale  and  conveyance  remain  in  force. 
McGee  v.  Smith,  1    C.   E.    Gr.  463.. 
Where  a  party  has  obtained  a  decree 
of  foreclosure,  under  which  the  mort- 
gaged premises  have  been  sold,  it  is 
too  late  to  question  the  validity  of  the 
mortgage.     Gest  v.  Fiock,  1   Gr.  Ch. 
108.     A   complainant    who   holds    a 
bond  and  mortgage  given  to  him  by 
the  mortgagor   as   collateral   security 
merely,  should,   if  the   debt   be   less 
than  the  mortgage,  take  a  decree  for 
the   actual   debt  and   interest.      Van 
Deventer  v.  Siiger,  10  C.  E.  Gr.  224. 
In  a  bill  of  foreclosure,  the  plaintiff 
may  omit  tracts  which  have  been  sold 
under  a  prior  mortgage,  or  to  which 
the  mortgagor  had  no  title.     Sedam 
V.  Williams,  4  McLean  51.     A  decree 
of  sale  in  a  suit  to  foreclose  a  mort- 
gage, in  which  known  cestuis  que  trust 
are   not   joined,   the  only   defendant 
being  a  trustee,  who  made  the  mort- 
gage on  account  of  known  cestuis  que 


files  his  bill  to  foreclose,  and  makes 
a    prior    mortgagee  a   party,   and   a 
decree  pro  confesso   is   taken   against 
such  prior  mortgagee,  and  under  the 
usual  decree  for  sale,  &c.,  the  premises 
are  sold,  and  bought  by  one  who  had 
notice   of  the   existence   of  the   first 
mortgage,  such  first  mortgage  is  not 
aflected  by  the  proceedings.     William- 
son V.  Probaseo,  4  Hal.  Ch.  571.     In 
all  cases  of  a  decree  for  sale  of  mort- 
gaged premises  against  any  absent  de- 
fendant,  if  such  defendant  shall,  at 
any  time  before  the  sale  made  by  the 
sheriff,  in   pursuance  of  the   writ  of 
execution,   cause    his    appearance   to 
be  entered  in  court,   and   shall   pay 
such    costs    to    the    complainant    as 
the    court    shall     think     reasonable, 
then  it  shall  and  may  be  lawful  for 
the    said    court,   by    a    writ    of   su- 
•persedeas,  {see  page  33,  ante,)  directed 
to  the  sheriff  or  other  oflScer,  to  stay 
his  proceedings  on  the  execution  for 
the  sale  of  such  mortgaged  premises  ; 
and  thereupon  such  proceedings  shall 
and  may  be  had  as  if  an  appearance 
had   been  entered  within  such  time 
and  in  such  manner  as,  according  to 
the  rules  of  the  court,  the  same  ought 
to  have  been  entered,  in  case  the  first 
process   in   the   suit   had   been   duly 
served.  Hev.,  "  Chancery,"  §  73.   This 
statute  is  not  mandatory.     To  justify 
the   interference   of    the   court,   such 
party   ought    to   show   surprise    and 
merits,     liorner  v.  Corniny,   1   Stew. 
Eq.  254.     When  the  amount  due  on 
any  decree  in  chancery  for  the  fore- 
closure and  sale  of  mortgaged  prem- 
ises shall  be  paid  and  satisfied  in  any 
other  way  than  by  a  sale  of  the  mort- 
gaged premises,  or  when  any  decree 


FORECLOSURE.  363 

one  of  the  masters  of  this  court,  bearing  date  on  the  day 

of  ,  eighteen  hundred  and  ,  from  all  which  it  ap- 

pears that  there  was  due  to  the  complainant,  on  the  day  of  the 
making  of  the  said  report,  for  principal  and  interest  on 
mortgage,  the  sum  of  dollars,  and  to  the  defendant,  , 

the  sum  of  dollars ;  that  the  same  premises  are  comprised 

in  the  respective  mortgages  of  the  complainant  and  last-afore- 
said defendant,  and  that  the  mortgage  of  is  first  in  registry 
and  execution,  and  is  entitled  to  priority  of  payment ;  and  that 
the  mortgage  of  is  second  in  registry  and  execution,  and 
is  entitled  to  be  secondly  paid ;  and  that  *  it  is  necessary  and 
advisable  that  the  whole  of  the  mortgaged  premises  should  be 
sold  to  raise  and  pay  the  money  so  due  as  aforesaid ;  and  no 
cause  being  shown  or  appearing  against  confirming  the  said 
report :  It  is  thereupon,  on  this  day  of  ,  eighteen 
hundred  and  ,  by  ,  Chancellor  of  the  State  of  New 
Jersey,  ordered,  adjudged  and  decreed,  and  the  said  Chancellor 
doth,  by  virtue  of  the  power  and  authority  of  this  court,  hereby 
order,  adjudge  and  decree,  that  the  said  report,  and  all  the 
matters  and  things  therein  contained,  do  stand  ratified  and  con- 
firmed, and  that  the  said  mortgaged  premises  be  sold  to  raise 
and  satisfy  the  several  sums  of  money  due  to  the  said  complain- 
ant and  defendant,  that  is  to  say,  in  the  first  place,  to  the  said 

the  sum  of  dollars,  together  with  lawful  interest 

thereon,  to  be  computed  from  the  day  of  ,  eighteen 

hundred  and  ,  being  the  date  of  the  master's  report,  with 

costs  to  be  taxed ;  and  in  the  second  place,  to  pay  unto  the  said 

the  sum  of  dollars,  together  with  lawful  interest 

thereon  as  aforesaid,  with  his  costs  to  be  taxed ;  and  that  a  writ 
o{  fieri  facias  do  issue  for  that  purpose  out  of  this  court,  directed 
to  the  sherijEf  of  the  county  of  ,  commanding  him  to  make 

sale,  according  to  law,  of  the  said  mortgaged  premises,  f  and  that 

trust,  does  not   bind   the  title  of  the  ing  bond,  calculating  the  value  at  the 

latter.     Oliver   v.  Plait,  3   How.  333.  time  of  the  actual  foreclosure. 
In  Hatch  v.  While,  2  Gall.  152,  it  was  It  is  error  to  make  a  decree  upon 

held   that   after   a  strict   foreclosure,  admissions  in  the  unsworn  answer  of 

the  mortgagee  may  recover  at  law  the  a  guardian  ad  litem.    Bank  of  U.  S.  v. 

balance  of  his  debt  on  the  accompany-  Ritchie,  8  Pet.  128. 


;364  FORMS   OF   PLEADINGS. 

out  of  the  money  arising  from  such  sale,  he  pay  to  the  com- 
plainant, or  to  his  solicitor,  said  debt,  interest  and  costs;  and 
also  to  the  aforesaid  defendant,  or  his  solicitor,  his  said  debt  and 
interest  and  costs,  in  manner  aforesaid ;  and  in  case  more  money 
should  be  raised  by  the  said  sale  than  shall  be  sufficient  to 
answer  such  several  payments,  that  such  surplus  be  brought  into 
this  court,  to  abide  the  further  order  of  the  court,  unless  other- 
wise previously  disposed  of  by  the  order  of  this  court ;  and  that 
the  said  sheriflP  make  return,  without  delay,  of  his  proceedings 
by  virtue  of  the  said  writ. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the 
defendants  stand  absolutely  debarred  and  foreclosed  of  and  from 
all  equity  of  redemption  of,  in  and  to  the  said  mortgaged 
premises,  when  sold  as  aforesaid  by  virtue  of  this  decree. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the  sum 
of  dollars  be  allowed  and  paid  to  the  solicitor  of  the  com- 

plainant, instead  of  the  retaining  fee  now  allowed  to  counsel  by 
statute,  and  that  the  same  be  included  in  the  taxed  bill  of  costs, 
and  collected  with  the  other  items  of  said  bill. 

Form  of  decree  for  sale  of  a  part  of  the  mortgaged 
premises  against  infants,  &c.,  when  the  bill  has 
been  ordered  to  be  taken  pro  confesso  against  the 

other  defendants. 

{Title  of  cause.) 

As  in  last  form  to  *,  then  add,  "  that,  under  the  circumstances 
of  this  case,  it  will,  in  the  opinion  of  the  master,  be  sufficient  to 
sell  a  part  of  the  mortgaged  premises  to  raise  and  pay  the  money 
due  to  the  complainant   and   to  the  said  ,  respectively, 

together  with  the  costs  of  this  suit,  and  that  it  is  for  the  benefit 
of  the  defendants,  and  ,  to  make  sale  for  that  pur- 

pose of  all  that  messuage,  &c.,  {deseribing  'particularly  the  part 
to  he  sold,)  being  part  of  said  premises,  and  no  cause  being 
shown  or  appearing  against  confirming  the  said  report :  It  is, 
on  this  day  of  ,  by  ,  Chancellor  of  the  State 

of  New  Jersey,  ordered,  adjudged  and  decreed,  and  the  said 
Chancellor  doth,  by  virtue  of  the  power  and  authority  of  this 
<30urt,  hereby  order,  adjudge  and  decree,  that  the  master's  report 


FORECLOSURE.  365- 

do  stand  ratified  and  confirmed,  and  that  the  above- described 
part  of  the  mortgaged  premises,  with  the  appurtenances,  be  sold 
to  raise  and  satisfy  the  sum  of  dollars,  due  to  the  com- 

plainant, together  with  lawful  interest  thereon,  from  the 
day  of  ,  eighteen   hundred  and  ,  the  date  of  the 

said  master's  report,  with  the  complainant's  costs  to  be  taxed; 
and  also  the  said  sum  of  dollars,  due  to  the  said  , 

together  with  lawful  interest  thereon  as  aforesaid  ;  and  that  a 
writ  of  fieri  facias  do  issue  for  that  purpose  out  of  this  court, 
directed  to  the  sheriiF  of  the  county  of  ,  commanding  him 

to  make  sale,  according  to  law,  of  the  before- described  part  of 
the  mortgaged  premises  {conclude  as  in  last  form  after  f-) 

Final  decree  after  report  for  sale  of  part,  where 
the  whole  mortgage  money  is  not  due. 

{Title  of  cause.) 

This  cause  coming  on  to  be  heard,  &c.,  and  upon  reading  and 
filing  the  report  made  in  this  cause,  in  pursuance  of  a  decretal 
order  of  the  court,  by  ,  one  of  the  masters  of  this  court, 

bearing  date   the  day  of  ,  eighteen   hundred   and 

,  by  which  it  appears  that  there  was  due  to  the  com- 
plainant, at  the  date  of  said  report,  on  his  mortgage  set  forth  in 
his  bill,  the  sum  of  dollars;  and  that  the  further   sum 

of  dollars  will  become  due  and  payable  on  the 

day  of  ,  eighteen  hundred  and  ,  with  legal  interest 

on  the  said  respective  sums  of  money  from  the  day  of 

,  eighteen  hundred  and  ,  {taking  the  language  of 

the  report  as  to  the  future  installments  and  interest ;)  and  that  a 
part  of  the  mortgaged  premises,  to  wit,  &c.,  {here  set  out  the 
description  of  the  part  to  be  sold,  as  in  the  report,)  can  be  sold  to 
satisfy  the  said  sum  of  dollars,  now  due  and  payable, 

together  with  interest  thereon  and  costs,  without  material  inj  ury 
to  the  remaining  part  of  the  mortgaged  premises,  and  no  cause 
being  shown  or  appearing  against  confirming  the  said  report: 
It  is  thereupon,  on  this  day  of  ,  eighteen  hundred 

and  ,  ordered,  adjudged  and  decreed,  by  ,  Chan- 

cellor of  the  State  of  New  Jersey,  and  it  is  hereby  ordered,. 


366  FOEMS   OF   PLEADINGS. 

adjudged  and  decreed,  by  virtue  of  the  power  and  authority  of 
this  court,  that  the  said  report,  and  all  the  matters  and  things 
therein  contained,  do  stand  ratified  and  confirmed,  and  that  the 
part  of  the  mortgaged  premises  mentioned  and  described  in  the 
master's  report  for  that  purpose,  be  sold  to  raise  and  satisfy  the 
said  sum  of  dollars,  reported  to  be  now  due  and  payable 

to  the  complainant,  together  with  the  lawful  interest  which  may 
accrue  thereon,  to  be  computed  from  the  day  of  , 

eighteen  hundred  and  ,  being  the  time  to  which  interest 

has  been  computed  by  the  master,  and  also  the  complainant's 
costs  to  be  taxed;  and  that  a  writ  of  fieri  facias  do  issue  for  that 
purpose  out  of  this  court,  directed  to  the  eheriif  of  the  county  of 

,  commanding  him  to  make  sale,  according  to  law,  of  said 
part  of  the  mortgaged  premises,  to  raise  and  satisfy  said  sum  of 

dollars,  together  with  interest  and  costs  as  aforesaid,  and 
that  he  pay  the  same  to  the  complainant  or  his  solicitor;  and 
that  in  case  more  money  should  be  raised  by  such  sale  than 
shall  be  sufficient  to  answer  such  payment,  such  surplus  money 
be  brought  into  this  court,  and  deposited  with  the  clerk,  to  abide 
the  further  order  of  this  court,  unless  otherwise  previously  dis- 
posed of  by  the  order  of  this  court ;  and  that  the  said  sheriff 
make  return  to  this  court  of  his  proceedings  by  virtue  of  the 
said  writ. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the 
defendants  stand  absolutely  debarred  and  foreclosed  of  and  from 
all  equity  of  redemption  of,  in  and  to  the  part  of  the  said  mort- 
gaged premises  ordered  to  be  sold,  when  so  sold  as  aforesaid. 
And  inasmuch  as  the  part  of  the  mortgaged  premises  so  ordered 
to  be  sold,  may  not  sell  for  a  sufficient  sum  to  pay  the  debt, 
interest  and  costs  ordered  to  be  raised  and  satisfied  as  aforesaid ; 
and  as  it  appears  by  the  master's  report,  that  the  said  mortgage 
is  intended  to  secure  further  payments  not  yet  due,  with  interest 
to  accrue  thereon,  and  which  ought  to  be  raised  (if  not  otherwise 
paid)  out  of  the  mortgaged  premises,  by  future  sales  thereof:  It 
is  further  ordered,  adjudged  and  decreed,  that  the  complainant 
shall  be  at  liberty  hereafter,  as  shall  be  necessary,  to  apply  to 
this  court  for  further  directions  respecting  the  same,  or  from 
time  to  time  to  go  before  a  master  upon  the  foot  of  this  decree. 


FORECLOSURE.  367 

and  obtain  a  report  as  to  the  amount  of  such  deficiency,  or  of 
the  further  amount  then  due  and  payable;  and  also  as  to  what 
further  part  of  the  mortgaged  premises  it  is  proper  to  direct  to 
be  sold  to  satisfy  the  same ;  to  the  end  that,  such  report  being 
made  to  this  court,  a  decree  may  thereupon  be  made  for  a  sale  of 
the  residue  of  the  mortgaged  premises,  or  such  part  or  parts 
thereof  as  may  be  equitable  and  just,  and  the  case  may  require, 
to  satisfy  such  deficiency,  or  what  shall  be  so  reported  to  have 
become  due  and  payable,  with  the  costs  attending  such  report, 
and  the  order  or  decree  thereon. 

Final  decree  upon  a  report  for  sale  of  residue  of 
the  mortgaged  premises. 

{Title  of  cause.) 
This  cause  coming  on  to  be  heard,  &c.,  and  it  appearing  that, 
by  a  decree  of  this  court  made  in  this  cause  on  the  day  of 

,  eighteen  hundred  and  ,  among  other  things  it 

was  ordered,  adjudged  and  decreed,  that  the  complainant  should 
be  at  liberty  thereafter,  from  time  to  time,  to  go  before  a  master 
of  this  court,  and  obtain  a  report  as  to  the  amount  that  should 
become  due  and  payable  on  his  bond  and  mortgage  therein  men- 
tioned, and  also  as  to  what  further  part  of  said  mortgaged 
premises  therein  referred  to,  it  would  be  proper  should  be 
directed  to  be  sold  to  satisfy  the  same ;  and  upon  reading  and 
filing  a  report  made  in  this  cause,  in  pursuance  of  the  said  order, 
by  ,  one  of  the  masters  of  this  court,  bearing  date  the 

day  of  ,  eighteen  hundred  and  ,  by  which 

said  report  it  appears  that  there  was  due  the  said  complainant,  at 
the  date  of  the  said  report,  on  his  mortgage,  referred  to  in  the 
bill  of  complaint  filed  in  this  cause,  for  principal  and  interest, 

dollars ;  and  that  the  residue  of  the  said  mortgaged 
premises,  not  heretofore  directed  to  be  sold,  that  is  to  say,  {here 
describe  the  premises  remaining  unsold,  as  in  the  report),  should 
now  be  sold  to  pay  to  the  said  complainant  the  said  sum  of 

dollars,  together  with  lawful  interest  thereon  from  the 
date  of  said  report,  and  the  complainant's  costs  to-be  taxed,  and 
no  cause  being  shown  to  the  contrary :    It  is,  on  this  day 


368  FORMS   OF   PLEADINGS. 

of  ,  eighteen  hundred  and  ,  by  ,  Chancellor 

of  the  State  of  New  Jersey,  ordered,  adjudged  and  decreed,  and 
the  said  Chancellor,  by  virtue  of  the  power  and  authority  of 
this  court,  doth  order,  adjudge  and  decree  that  the  said  report, 
and  all  the  matters  and  things  therein  contained,  do  stand  rati- 
fied and  confirmed ;  and  that  all  the  residue  of  the  said  mort- 
gaged premises  not  heretofore  sold,  be  sold,  to  raise  and  pay  the 
said  sum  of  dollars,  reported  to  be  now  due  and  payable 

to  the  said  complainant,  with  the  lawful  interest  thereon,  to  be 
computed  from  the  date  of  the  said  report,  and  the  costs  of  the 
said  complainant  to  be  taxed ;  and  that  a  writ  of  fieri  facias  do 
issue  for  that  purpose  out  of  this  court,  directed  to  the  sheriff  of 
the  county  of  ,  commanding  him  to  make  sale,  according 

to  law,  of  the  said  residue  of  the  said  premises,  to  raise  and  pay 
the  sum  of  dollars,  with  interest  and  costs  as  aforesaid ; 

and  that  in  case  more  money  should  be  raised  by  such  sale  than 
shall  be  sufficient  to  answer  such  payment,  such  surplus  money 
be  brought  into  this  court,  and  be  deposited  with  the  clerk,  to 
abide  the  further  order  of  this  court,  unless  otherwise  previously 
disposed  of  by  the  order  of  this  court;  and  that  the  said  sheriff 
make  return  to  this  court  of  his  proceedings  by  virtue  of  the 
said  writ. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the 
defendants  stand  absolutely  debarred  and  foreclosed  of  and  from 
all  equity  of  redemption  of,  in  and  to  the  said  residue  of  said 
mortgaged  premises,  when  sold  as  aforesaid,  by  virtue  of  this 
decree. 

Special  decree  in  a  mortgage  case  in  favor  of 
complainant  and  several  defendants  who  are  mort- 
gagees, directing   sale  and    payment    according   to 

priorities.(a) 

[Title  of  cause.) 

The  bill  filed  in  this  cause  having  been  heretofore  ordered  to 
be  taken  as  confessed  against  all  the  defendants,  and  the  cause 

(a)  Where  a  mortgagor,  after  giv-  for  a  valuable  consideration,  the  resi- 
ing  a  mortgage,  sells  a  part  of  the  due  of  the  premises,  in  the  hands  of 
mortgaged  premises  to  a  third  person       the   mortgagor,  or   his  vendee,  must 


FORECLOSURE. 


369 


now  coming  on  to  be  heard  in  presence  of  ,  of  counsel 

with  the  complainant,  and  it  appearing  by  the  report  of  , 

one  of  the  masters  of  this  court,  bearing  date  the  day  of 

instant,  that  there  was  due,  on  the  day  of  the  date  thereof, 
to  ,  upon  the  bond  held  by  him,  payment  whereof  was 

intended  to  be  secured  by  the  mortgage  made  to  him, 
dollars,  and  that  his  said  mortgage  debt  is  first  in  order  of 
priority  upon  the  lot  of  land  and  premises  first  mentioned  and 
described  in  the  complainant's  mortgage,  and  is  entitled  to  be 
first  paid  and  satisfied  out  of  those  premises ;  and  that  there  was 
due  to  ,  upon  the  bond  held  by  him,  payment  whereof 

was   intended   to   be   secured   by  the  mortgage  made  to  him, 

dollars,  and  that  his  said  mortgage  debt  is  first  in  order 
of  priority  upon  the  lot  of  land  thirdly  described  in  the  com- 
plainant's mortgage,  and  is  entitled  to  be  first  paid  and  satisfied 
out  of  those  premises ;  and  that  there  was  due  to  ,  on  the 

bond  held  by  him,  dollars,  and  that  his  said  mortgage 

debt  is  first  in  order  of  priority  upon  the  lots  secondly,  fourthly 


be  sold  first  to  satisfy  the  mortgage. 
Shannon  v.  Marcelis,  Sax.  413.  And 
where  mortgaged  premises  are  sold  in 
separate  parcels  successively,  to  differ- 
ent purchasers,  with  covenants  against 
encumbrances,  the  parcels  are  liable 
to  payment  in  the  inverse  order  of 
their  sale.  Mount  v.  Fotts,  8  C.  E. 
Gr.  188 ;  Hiles  v.  Coult,  3  Stew.  Eq. 
40.  A  release  of  any  of  the  parcels 
of  the  mortgaged  premises  succes- 
sively sold,  from  the  mortgage,  not 
only  frees  that  parcel  entirely  from 
the  lien,  but  also  frees  the  parcel  sold 
before  it,  or  so  much  of  that  parcel  as 
the  parcel  released  would  have  satis- 
fied if  not  released.  And  the  mort- 
gagee cannot,  by  a  release  or  any  act  of 
his,  change  the  right  of  the  purchaser 
of  any  of  the  parcels  to  have  every 
parcel  subse(iuently  sold,  or  its  value 
first  appropriated  to  the  payment. 
lb.    Where,  after  a  sale  of  the  mort- 


gaged premises  in  successive  parcels, 
the  purchaser  of  a  parcel  first  sold 
gives  another  mortgage  on  that  par- 
cel, such  second  mortgage  cannot  be 
decreed,  at  the  instance  of  the  owners 
of  the  third  and  fourth  parcels,  in  a 
suit  to  foreclose  the  first  mortgage 
covering  the  whole  tract,  to  be  paid 
by  the  mortgagee  holding  such  second 
mortgage,  on  the  ground  of  its  being 
a  personal  obligation.  lb.  The  equity 
which  entitles  a  subsequent  mortgage 
encumbrancer  to  the  benefit  of  a  re- 
lease executed  by  a  first  mortgagee, 
arises  only  when  the  first  mortgagee 
gives  the  release  with  knowledge  of 
the  existence  of  the  subsequent  mort- 
gage. The  recording  of  the  subse- 
quent mortgage  will  not  operate  as 
constructive  notice  of  its  existence  to 
the  prior  mortgagee.  Ward's  Ex'rs 
V.  Hayne,  10  C.  E.  Gr.  397. 


370  FOEMS   OF   PLEADINGS. 

and  fifthly  described  in  the  complainant's  mortgage,  and  is  entitled 
to  be  first  paid  and  satisfied  out  of  those  premises ;  and  that  there 
was  due  to  ,  upon  the  bond  held  by  him,  payment  whereof 

was  intended  to  be  secured  by  the  mortgage  held  by  him, 
dollars,  and  that  the  last- mentioned  mortgage  is  second  in  order 
of  priority  upon  the  lot  of  land  and  premises  first  described  in 
the  complainant's  mortgage,  and  is  entitled  to  be  paid  and  satisfied 
next  after  the  mortgage  of  the  said  ,  out  of  those  premises, 

and  before  the  complainant's  mortgage;  and  also  that  there  was 
due  to  the  complainant,  upon  the  bond  held  by  him,  payment 
whereof  was  intended  to  be  eecured  by  the  mortgage  made  to  him, 
dollars,  and  that  his  mortgage  debt  is  second  in  order 
of  priority  upon  the  tracts  of  land  and  premises  secondly, 
thirdly,  fourthly  and  fifthly  described  in  the  complainant's 
mortgage,  and  third  in  order  of  priority  upon  the  residue  of 
the  said  premises;  and  no  cause  being  shown  or  appearing 
against  confirming  the  said  report:   It  is,  on  this  day  of 

,  eighteen  hundred  and  ,  by  ,  Chancellor  of 

the  State  of  New  Jersey,  ordered,  adjudged  and  decreed,  that 
the  master's  report,  and  all  the  matters  and  things  therein  con- 
tained, do  stand  ratified  and  confirmed,  and  that  the  said  com- 
plainant is  entitled  to  relief  and  to  a  sale  of  so  much  of  the  said 
mortgaged  premises  as  shall  be  necessary  to  satisfy  to  the  said 
,  ,  ,  and  ,  and  the  complainant,  the 

amounts  so  as  aforesaid  reported  due  to  them  respectively,  with 
the  complainant's  costs. 

And  it  is  accordingly  further  ordered,  adjudged  and  decreed, 
that  so  much  of  said  estate  and  premises  in  the  said  mortgages 
of  the  complainant  and  the  said  last-named  defendants  men- 
tioned, as  will  be  sufficient  to  raise  and  satisfy  the  said  sums  so 
as  aforesaid  reported  to  be  due  to  them,  respactiVely,  with  the 
complainant's  costs  to  be  taxed,  be  sold;  and  that  a  writ  of 
fieri  facias  do  issue  for  that  purpose  out  of  this  court,  directed 
to  the  sheriff  of  the  county  of  ,  commanding  him  to  make 

sale,  according  to  law,  of  the  said  mortgaged  premises ;  and  that 
he  make  sale,  in  the  first  place,  of  the  tract  of  land  first  set  forth 
in  complainant's  bill ;  and  that  out  of  the  moneys  arising  from 
such  sale,  he,  in  the  first  place,  pay  to  ,  or  his  solicitor, 


FORECLOSURE.  371 

the  sum  of  dollars,  with  interest,  to  be  computed  from 

the  date  of  said  report  until  the  same  be  paid ;  and  that  he  do 
then  pay  out  of  the  proceeds  arising  from  such  sale,  (in  case 
there  be  more  than  sufficient  to  answer  such  payment  to  said 

),  in  the  second  place,  to  ,  or  his  solicitor,  the  sum 

of  dollars,  with  interest  as  aforesaid;  and  that  in  case 

there  be  any  surplus  after  paying  the  two  amounts  as  aforesaid, 
he  do  pay  therewith,  if  sufficient,  (and  if  not,  then  he  do  pay 
therewith,  so  far  as  the  same  will  extend),  to  the  said  com- 
plainant, or  to  his  solicitor,  the  said  sum  of  dollars,  with 
lawful  interest  thereon  as  aforesaid,  with  his  costs  in  this  suit  to 
be  taxed;  and  that,  in  the  second  place,  he  make  sale  of  the 
tract  of  land  thirdly  set  forth  in  the  complainant's  bill;  and 
that  out  of  the  moneys  arising  from  such  sale,  he,  in  the  first 
place,  pay  to  the  said  the  sum  of  dollars,  with  law- 
ful interest  thereon  as  aforesaid ;  and  in  case  more  money  should 
be  raised  by  such  sale  than  shall  be  sufficient  to  answer  such 
payment,  and  the  balance  arising  from  the  sale  of  the  first  tract, 
after  payment  of  the  first  two  mortgages,  should  be  insufficient 
to  satisfy  the  complainant's  debt,  interest  and  costs,  then  he  pay 
out  of  the  surplus  from  the  sale  of  the  third  tract,  (or  so  far  as 
the  same  will  extend  towards  paying  the  same),  the  amount  or 
balance  remaining  due  to  the  complainant;  and  that,  in  the  third 
place,  he  make  sale  of  the  tracts  of  land  secondly,  fourthly  and 
fifthly  set  forth  in  the  complainant's  bill;  and  that  out  of  the 
moneys  arising  from  such  sale,  he,  in  the  first  place,  pay  to 

,  or  to  his  solicitor,  the  sum  of  dollars,  with  lawful 

interest  thereon  as  aforesaid ;  and  in  case  more  money  should  be 
raised  by  such  sale  than  shall  be  sufficient  to  answer  such  pay- 
ment, and  the  balance,  if  any,  arising  from  the  sales  of  the  first 
and  third  tracts,  after  payment  of  the  respective  mortgages 
thereon  prior  to  the  complainant's  mortgage,  should  be  insuffi- 
cient to  satisfy  the  complainant's  said  debt,  interest  and  costs, 
that  then  he  apply  the  surplus  arising  from  the  sale  of  the  three 
last- mentioned  tracts,  to,  or  so  far  as  the  same  will  extend 
towards,  paying  off  the  amount  or  balance  remaining  due  the 
complainant  for  his  said  debt,  interest  and  costs;  and  in  case, 
after  satisfaction  of  the  complainant's  debt,  interest  and  costs. 


372 


FOEMS   OF   PLEADINGS. 


there  still  be  any  surplus,  that  the  same  be  brought  into  this 
court,  and  deposited  with  the  clerk,  to  abide  the  order  of  this 
court,  unless  otherwise  previously  disposed  of  by  the  further 
order  of  the  court ;  and  that  the  said  sheriff  make  return  to  this 
court  of  his  proceedings  by  virtue  of  the  said  writ. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the 
defendants  stand  absolutely  debarred  and  foreclosed  of  and  from 
all  equity  of  redemption  of,  in  and  to  so  much  of  the  said  mort- 
gaged premises  as  shall  be  sold  as  aforesaid  by  virtue  of  this 
decree. 

[Add  the  usual  clause  as  to  counsel  fee.) 


Petition  for  receiver  of  rents,  &c.,  of  mortgaged 

premises.(a) 

{Title  of  cause.) 

The  petition  of  ,  of,  &c.,  respectfully  shows,  that  on 

the  day  of  ,  he  filed  his  bill  of  complaint  in  the 

above-stated   cause  to  foreclose  a  mortgage  held   by  him,  and 
made  by  the  said  defendants. 


(a)  Prior  to  1873,  applications  for 
receivers  in  mortgage  cases  had  been 
very  unusual  in  the  Court  of  Clian- 
cery  of  New  Jersey.  Frisbie  v.  Bate- 
man,  9  C.  E.  Gr.  28.  It  was  formerly 
held  that  a  receiver  to  collect  rents 
from  tenants  of  the  mortgagor  would 
not  be  appointed  on  filing  a  fore- 
closure bill.  Best  V.  Schermier,  2  Hal. 
Ch.  154.  This  was  on  the  ground 
that  the  mortgagor  was  entitled  to  the 
rents  while  in  possession  by  his  ten- 
ants, and  before  the  actual  entry  by 
the  mortgagee.  Ibid. ;  see  Sanderson 
V.  Price,  1  Zab.  637.  The  practice  in 
chancery  has  been  modified  in  this 
respect,  and  now,  if  the  bill  contains 
sufiicient  grounds  for  the  appointment 
of  a  receiver,  and  is  sworn  to,  the 
complainant  may  move  for  one  on  the 
bill  alone,  or  on  a  petition  in  the 
cause,    duly    verified.      Cortleyeu    v. 


Hathaway,  3  Stock.  39.  And  after 
bill  for  foreclosure,  a  first  mortgagee 
is  entitled  to  a  receiver  in  a  case 
where  he  shows  that  he  has  no  per- 
sonal security  for  his  debt ;  that  the 
premises  are  an  insuSicient  security  ; 
that  the  mortgagor  has  not  paid  the 
interest,  and  has  not  paid  the  taxes 
on  the  premises,  whereby  a  lien  has 
been  created  paramount  to  that  of 
the  mortgage,  and  which  may,  if  not 
itself  extinguished,  extinguish  the 
mortgage.  Mahon  v.  Crothers,  1  Stew. 
Eq.  567.  Where  the  application  for 
the  appointment  of  a  receiver  is  made 
on  the  bill,  it  must  contain  a  specific 
prayer  that  a  receiver  may  be  ap- 
pointed. Dan.  Ch.  Pr.  1734.  The 
application  for  a  receiver  on  the  bill 
is  made  by  motion,  of  which  the  de- 
fendants are  entitled  to  notice.  Tib- 
bals  V.  Sargeant,  1  McCart.  449.     The 


FORECLOSURE. 


373 


And  your  petitioner  further  shows,  that  the  mortgaged  prem- 
ises consist  of  {state  generally  and  briefly  the  character  of  the 
premises,)  situate,  &c. ;  that  the  said  defendants  have  neglected 
to  make  the  necessary  repairs  to  the  said  buildings ;  and  that 
the  said  house  and  the  lot  embraced  in  your  petitioner's  said 
mortgage  have  greatly  depreciated  in  value  since  the  making  of 
said  mortgage,  and  are  not  now  worth  more  than  the  sum  of 
dollars,  and  at  a  fair  and  ordinary  sale  would  not  realize 
more  than  that  sum,  and  at  a  forced  sale  would  not,  in  the 
opinion  of  your  petitioner,  sell  for  more  than  dollars; 

that  the  said  mortgage  was  given  by  the  said  defendant  , 

and  ,  his  wife,  to  your  petitioner  on  the  day  of 

,  eighteen  hundred  and  ,  to  secure  the  sum  of 

dollars,  payable  in  one  year  from  the  date  thereof,  with 


first  mortgagee  is  entitled  to  the  pos- 
session of  the  mortgaged  premises, 
and  being  in  possession,  there  can  be 
no  receiver  as  against  him.  Trenton 
Banking  Co.  v.  Woodruff,  2  Or.  Ch. 
210.  Although  the  validity  or  ex- 
istence of  the  first  mortgage  be  dis- 
puted, the  court  should  not  interfere 
with  the  receipt  of  the  rents  and 
profits  by  the  first  mortgagee  in  pos- 
session, by  appointing  a  receiver  as 
against  him,  which  is  a  virtual  dis- 
possession of  him,  unless  it  be  shown 
that  he  will  not  be  able  to  respond 
fpr  the  rents  in  case  of  a  decree 
against  him.  Ibid.  The  rule  in 
New  York,  that  where  premises  are 
an  inadequate  security,  and  the  mort- 
gagor is  insolvent,  a  receiver  will  be 
appointed,  has  not  been  adopted  in 
New  Jersey.  Cortleyeu  v.  Hathaway, 
3  Stock.  39  ;  see  Frisbie  v.  Bateman,  9 
C.  E.  Gr.  28.  If  buildings  have  been 
burned  down,  or  have  been  permitted 
to  go  to  decay,  or  waste  committed, 
and  the  property  has  depreciated  in 
value  through  the  fault  or  negligence 
of  the  mortgagor  or  tenant  in  posses- 
sion ;  or  where  there  is  any  act  on  the 


part  of  the  mortgagor  or  such  tenant, 
which  shows  fraud  or  makes  him 
chargeable  with  bad  faith  in  misap- 
propriating the  rents  and  profits  for 
other  purposes  than  keeping  down  the 
interest  on  the  encumbrances,  in  such 
cases  the  court  may  properly  appoint  a 
receiver.  The  power  should  be  exer- 
cised with  great  caution,  and  only  in 
cases  where  there  is  an  apparent  neces- 
sity for  it.  Ibid.  Where  mortgaged 
premises  were  so  situated  that  they 
could  not  be  sold  in  parcels,  a  receiver 
of  the  rents  was  appointed  upon  a 
part  only  of  the  mortgage  debt  falling 
due,  the  other  requisite  facts  being 
made  to  appear.  Quincy  v.  Cheesman, 
4  Sandf.  Ch.  405.  In  Sea  Ins.  Co.  v. 
Stebbing,  8  Paige  565,  it  was  stated 
to  be  the  practice  in  New  York,  that 
where  the  party  in  possession  con- 
sented to  give  security  to  account  for 
the  rents  and  profits,  as  the  court 
should  direct,  in  case  there  should 
ultimately  be  a  deficiency  upon  the 
sale  of  the  premises  under  the  decree, 
not  to  appoint  a  receiver.  There  are 
instances  of  such  practice  in  New 
Jersey. 


374  FOEMS  OF   PLEADINGS. 

lawful  interest  thereon,  semi-annually;  and  that  no  part  of 
either  the  principal  or  the  interest  due  or  accrued  thereon  has 
been  paid. 

And  your  petitioner  further  shows,  that  the  taxes  on  the  said 
mortgaged  premises,  for  the  year  eighteen  hundred  and  , 

are  in  arrear  and  unpaid ;  and  that  said  premises  have  been  sold 
for  the  taxes  due  thereon  for  the  year  eighteen  hundred  and 
;  the  lien  of  which  taxes  is  paramount  to  the  lien  of  your 
petitioner's  said  mortgage. 

And  your  petitioner  further  shows,  that  the  said  mortgaged 
premises  have  been,  for  the  past  months,  and  now  are, 

occupied  by  ,  who  holds  the  same  as  a  tenant  of  the  said 

{the  mortgagor,)  at  the  monthly  rental  of  dollars;  and 

that  the  said  {the  mortgagor)  collects  the  said  rent,  and  refuses 
to  pay  the  same  to  your  petitioner,  or  allow  your  petitioner  to 
collect  and  apply  the  same  to  the  payment  of  the  said  mortgage 

debt. 

And  your  petitioner  further  shows,  that  the  said  {the  mort- 
gagor) is  insolvent. 

Your  petitioner  therefore  prays,  that  a  receiver  may  be 
appointed  to  collect  the  rents  of  the  said  mortgaged  premises 
now  due  or  hereafter  to  become  due,  with  such  powers  as  may 
be  necessary;  and  that  the  said  {the  mortgagor)  be  enjoined  from 
further  collecting  said  rents,  and  the  said  {the  tenant)  from  pay- 
ing over  to  the  said  {the  mortgagor,)  or  to  any  other  person 
whomsoever,  any  of  the  rents  and  profits  of  the  said  mortgaged 
premises,  until  the  further  order  of  this  court. 

And  your  petitioner,  &c. 

{Signature  of  solicitor  and  counsel.) 

{Annex  affidavit  fully  verifying  the  petition  and  the  particular 
facts  alleged  therein.){a) 

(a)  The  application  must  be  sup-  upon  as  rendering  the  appointment 
ported  by  evidence  of  the  facts  relied       proper. 


FORECLOSURE.  375 

Order  to  show  cause  on  foregoing  petition. (a) 

{Title  of  cause.) 

This  matter  beiDg  opened  to  the  court  by,  &c.,  and  upon  read- 
ing and  filing  the  petition  of  the  said  complainant,  and  the  affi- 
davits thereto  annexed :  It  is,  on  this,  &c.,  ordered,  that  (the 
mortgagor)  show  cause,  before   the  Chancellor,  on  ,  the 

day  of  next,  {or  "instant,")  at  ten  o'clock  in  the  forenoon, 

at  the  State-house,  in  Trenton,  {or,  "at  the  chancery  chambers, 
in  the  city  of  ,")  why  a  receiver  should  not  be  appointed 

of  the  rents  and  profits  of  the  mortgaged  premises  described  in 
the  bill  of  complaint  in  this  cause. 

And  it  is  further  ordered,  that  in  the  meantime,  after  notice 
of  this  order,  the  said  {the  riiortgagor)  refrain  from  collecting  or 
receiving,  and  that  {the  tenant)  refrain  from  paying  over  to  any 
person  whomsoever,  any  of  the  said  rents  and  profits,  until  the 
further  order  of  this  court. 

And  it  is  further  ordered,  that  a  copy  of  this  order  be  served 
on  the  said  and  ,  respectively,  within  days 

from  the  date  hereof. 

Order  appointing  a  receiver  of  rents,  &c.,  of  mort- 
gaged premises. 

{Title  of  cause.) 

This  matter  being  opened  to  the  court,  &c.,  and  it  appearing 
that  a  copy  of  the  order  to  show  cause  why  a  receiver  should 
not  be  appointed  in  this  suit,  has  been  duly  served  on  the 
defendant,  ,  and  upon  ,  the  tenant,  as  directed  in 

said  order ;  and  it  further  appearing  that  the  prayer  of  the  said 
petition  should  be  granted :  It  is,  on  this,  &c.,  ordered,  that  the 
said  order  to  show  cause  be  made  absolute  ;  and  that  ,  of 

,  be  and  he  is  hereby  appointed  a  receiver  in  this  cause, 
to  take  charge  of  the  mortgaged  premises  in  said  petition  and 
in  the  bill  of  complaint  in  this  suit  mentioned,  and  to  manage 
the  same,  with  power  to  sue  for,  collect  and  receive  the  rents, 

(a)  This  order  must   be  served  in      clerk,  to  be  used   on   the  hearing  of 
the    manner    directed    therein,    and       the  order, 
proof  of  such  service  filed  with   the 


376  FORMS   OF   PLEADINGS. 

issues  and  profits  thereof ;(a)  (and  he  is  to  account  for  and  pay 
what  he  shall  so  receive,  as  this  court  shall  direct) ;  to  let  the 
said  premises,  or  any  part  thereof,  from  time  to  time;  and  to 
agree  concerning  the  rents  to  be  paid  therefor,  and  to  do  all 
things  necessary  for  the  proper  care  and  management  of  said 
premises.(6) 

And  it  is  further  ordered,  that  before  entering  upon  his 
duties,  he  give  a  bond  to  the  Chancellor  for  the  faithful  per- 
formance of  his  duties,  in  such  sum  and  with  such  surety  or 
sureties  as  may  be  approved  by  ,  one  of  the  special  masters 

of  this  court ;  said  bond  to  be  filed  with  the  clerk  of  this  court. 

Bond  of  receiver  under  foregoing  order. (c)  Know 
all  men  by  these  presents,  that  and  are  held  and 

firmly  bound  unto  the  Chancellor  of  the  State  of  New  Jersey  in 
the  sum  of,  <fec.,  to  be  paid  to  the  said  Chancellor,  his  successors 
and  assigns,  in  the  sum  of  ,  then  as  in  form  on  page  302 

to  *,  then,  "  The  condition  of  this  obligation  is  such,  that  whereas 
the  above-named  has  been  appointed  a  receiver  of  the 

rents  and  profits  of  the  mortgaged  premises  mentioned  and 
described  in  the  bill  of  complaint  in  a  certain  cause  depending 
in  the  Court  of  Chancery  of  the  State  of  New  Jersey,  wherein 
is  complainant,  and  and  others  are  defendants  : 

Now,  therefore,  if  the  said  do  and   shall,  duly  and 

faithfully,  account  for  and  pay  what  he  shall  receive  of  said 
rents  and  profits,  as  the  said  Court  of  Chancery  shall  direct,  and 
shall  in  all  things  well  and  truly  fulfill  and  discharge  the  duties 
of  his  said  office  of  receiver,  then  this  obligation  to  be  void ; 
otherwise,  to  remain  in  full  force  and  virtue. 

[L.  S.] 

Sealed  and  delivered  in  the  presence  of —  [l.  s.] 

(a)  If  the  appointment  is  of  rents  1747 ;  Holcombe  v.  Jlolcombe,  2  Beas. 
and  profits  of  real  estate,  the  order  417 ;  and  McArtJmr  v.  Montdalr  Mail- 
should  direct  the  tenants  to  attorn  way  Co.,  12  C.  E.  Gr.  77. 
and  pay  their  rents  in  arrears  and  (c)  The  security  is  generally  re- 
growing  rents  to  the  receiver.  Dan.  quired  to  be  for  double  the  annual 
Ch.  Pr.  1737.  rental  or  value  of  the  property  likely 

(6)  For  practice  as  to  commissions  to  be  got  in  by  the  receiver.     Dan. 

of  receivers  and   allowances  for  ex-  Ch.  Pr.  1736. 
penses,  &c.,  see  Dan.   Ch.  Pr.  1746, 


REDEMPTION. 


377 


up 


REDEMPTION   OF  MORTGAGED   PREMISES. 

Bill    to  redeem    mortgaged    premises,   setting 
tender  and  payment.(a) 

(Address.) 
Complaining,  shows  unto  your  Honor  your  orator,  , 

of  ,  in  the  county  of  ,  and  State  of  New  Jersey, 

that  on  or  about  the  day  of  ,  eighteen  hundred 


(a)  A  mortgagor  cannot  redeem  the 
mortgaged  estate  without  making  all 
those  who  have  an  equal  right  to 
redeem  with  himself  parties  to  the 
suit.  This  rule  has  been  held  to 
apply  to  a  second  encumbrancer  filing 
a  bill  to  redeem  a  prior  encumbrance, 
who  must,  in  such  case,  bring  the 
mortgagor,  as  well  as  the  prior  en- 
cumbrancer, before  the  court.  1  Dan. 
Ch.  Pr.  212,  213.  As  a  general  rule, 
where  the  mortgage  is  due,  and  liable 
to  be  foreclosed,  all  persons  who  have 
acquired  an  interest  in  the  lands 
mortgaged,  have  a  right  to  disengage 
the  property  from  all  encumbrances, 
when  it  becomes  necessary  so  to  do,  in 
order  to  make  their  own  claims  avail- 
able or  beneficial.  Bigelow  v.  Cassedy, 
11  C.  E.  Gr.  557,  The  mere  fact  that 
a  person  occupies  the  position  of  a 
second  mortgagee  or  subsequent  judg- 
ment creditor,  does  not  entitle  him  to 
redeem  the  prior  mortgage.  Unless 
some  special  equity  exists  in  the  sub- 
sequent encumbrancer,  the  prior  mort- 
gagee has  a  right  to  retain  his  secur- 
ity, and  may  refuse  to  surrender  it,  so 
long  as  the  mortgagor  does  not  wish 
to  discharge  it.  Ibid.  If  the  second 
encumbrancer  happens  to  be  in  such  a 
position  that  he  is  in  danger  of  losing 
the  benefit  of  his  security,  unless  he  is 
permitted  to  redeem,  and  the  circum- 
stances  are   such   that   equity  would 


subrogate  him,  upon  making  these 
facts  known  to  the  first  mortgagee, 
and  making  him  an  unconditional 
tender  of  his  money,  he  would  be  put 
upon  his  inquiry,  and,  after  taking  a 
reasonable  time  to  be  advised,  his 
refusal  to  accept  the  tender  and  de- 
liver up  his  mortgage  would  be  at  his 
peril.  Ibid.  The  right  of  redemp- 
tion cannot  be  restricted  to  a  limited 
time,  or  to  a  particular  class  of  per- 
sons. Youle  V.  Richards,  Sax.  534. 
Nor  can  the  mortgagor  deprive  him- 
self thereof,  even  by  express  covenant. 
Vanderhaise  v.  Hugues,  2  Beas.  244, 
410.  A  widow  entitled  to  dower  has 
a  right  to  her  bill  in  equity  to  redeem 
a  mortgage  which  is  an  encumbrance 
upon  her  rights.  Opdyke  v.  Bartles, 
3  Stock.  133.  A  purchaser  (first  mort- 
gagee) at  a  sale  under  a  foreclosure 
suit  upon  his  mortgage,  to  which  suit 
a  second  mortgagee  was,  by  oversight, 
not  made  a  party,  is  entitled  to  re- 
quire the  second  mortgagee  to  redeem 
in  a  reasonable  time,  or  in  default 
thereof  to  be  foreclosed.  Parker  v. 
Child,  10  C.  E.  Gr.  41.  The  purchaser 
of  a  mere  equity  of  redemption  pur- 
chases a  right,  and  does  not  assume 
an  obligation  to  redeem.  He  may,  at 
his  pleasure,  give  up  the  mortgaged 
premises  in  satisfaction  of  the  encum- 
brance, and  he  is  liable  to  the  ex- 
tent of  the  value  of   the    premises 


378 


FORMS   OF   PLEADINGS. 


and  ,  in  pursuance  of  a  bargain  previously  made  between 

your  orator  and  one  ,  of  aforesaid,  the  said 

and  ,  his  wife,  did  deliver  to  your  orator  a  deed  of  con- 

veyance, duly  signed,  sealed  and  acknowledged  by  said 
and  his  wife,  bearing  date  the  day  of  ,  eighteen 

hundred  and  ,  expressed  to  be  for  the  consideration  of 

dollars,  (which  was  the  true  consideration,)  in  and  by 
which  deed  the  said  and  ,  his  wife,  did,  for  the 

consideration  aforesaid,  convey  to  your  orator,  his  heirs  and 
assigns  forever,  all  those  two  certain  lots,  &c.,  {describe  prem- 
ises,) as  by  reference  to  the  said  deed  of  conveyance,  to  which 
your  orator  prays  leave  to  refer,  will  more  fully  and  at  large 
appear. 


only.     Tichenor  v.  Dodd,  3    Gr.  Ch. 
454.     The  price  for  which  the  prop- 
erty was  purchased  at  a   sale   under 
foreclosure  cannot  affect  the  equities 
subsisting    between   the    mortgagees. 
The    subsequent    encumbrancer    can 
only    redeem     by    paying    the    full 
amount  of  the  first  mortgage.    Large 
V.  Van  Doren,  1  McCart.  208.     If  the 
owner  of  the  fee  purchases  a  mort- 
gage upon  the  premises,  after  a  sale 
thereof  for  taxes,  the  mortgage  does 
not  merge  so  as  to  deprive  him  of  the 
mortgagee's  right  to  redeem,  although 
his  own  right  as  owner  is  forfeited  by 
the  lapse  of  time.     Duncan  v.  Smith, 
2  Vr.  325.    After  the  death  of  a  mort- 
gagor, his  heirs  are  the  persons  pri- 
marily liable  for  any  unpaid  balance 
due   upon    the   mortgage ;   and   they 
alone  can  ask  to  redeem,   and  have 
the  mortgage  canceled  and  satisfied. 
Sutherland  v.  Rose,  47  Barb.  145.   The 
redemption   must    be  of    the    entire 
mortgage,   and  not   by   parcels.     He 
who  redeems  must  pay  the  whole  debt. 
Palk  V.  Clinton,  12  Ves.  59.     There- 
fore, an  owner  of  part  of  an   estate 
mortgaged,  cannot  separately  redeem 
his  part.    The  mortgagee  is  entitled  to 


insist  that  the  whole  of  the  mortgaged 
premises  shall  be  redeemed  together. 
Ibid.;  Cholmondeley  v.  Clinton,  2  Jac. 
&  W.  189.  But  one  who  has  the 
equity  of  redemption  of  a  part  of 
mortgaged  premises,  has  a  right  to 
redeem  the  entire  premises.  Boqut 
V.  Coburn,  27  Barb.  230.  It  is  essen- 
tial to  a  bill  to  redeem  a  mortgage, 
that  the  complainant  should  offer  to 
pay  the  debt,  interest  and  costs.  Beek- 
man  v.  Frost,  18  John.  544.  A  mort- 
gagor filing  a  bill  to  redeem,  must 
pay  the  cost  of  persons  defendant 
claiming  under  the  mortgagee.  Weth- 
erell  v.  Collins,  8  Mad.  255.  As  a 
general  rule,  a  party  coming  into  a 
court  of  equity  to  redeem,  pays  costs 
to  the  defendant,  in  addition  ta 
the  amount  due  upon  the  mortgage, 
although  he  obtains  the  relief  prayed 
for.  Vroom  v.  Ditmas,  4  Paige  526. 
If  the  defendant  resists  improperly 
the  claim  of  the  complainant  to  re- 
deem, or  sets  up  an  unconscientious 
defence,  he  will  be  refused  his  costs, 
and  may  be  compelled  to  pay  costs  to 
the  adverse  party,  in  the  discretion  of 
the  court.     Ibid. 


REDEMPTION.  379 

And  your  orator  further  shows,  that  in  order  to  secure  the 
payment  of  a  part  of  the  purchase- money  agreed  by  your  orator 
to  be  paid  for  the  said  lands  and  premises,  your  orator,  on  the 
said  day  of  ,  eighteen  hundred  and  ,  did 

deliver  to  the  said  a  bond,  made  by  your  orator  to  the 

said  ,  bearing  date  the  day  of  ,  eighteen  hun- 

dred and  ,  in  the  penal  sum  of  ,  dollars,  with  condi- 

tion thereto,  that  if  your  orator,  his  heirs,  executors  or  adminis- 
trators, should  well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
said  ,  his  executors,  administrators  or  assigns,  the  just  and 

full  sum  of  dollars,  on  the  day  of  ,  eighteen 

hundred  and  ,  with  interest  from  date,  then  the  said  bond 

or  obligation  should  be  void,  otherwise  to  be  and  remain  in  full 
force  and  virtue,  as  by  reference  to  the  said  bond  now  in  the 
possession  of  the  said  ,  and  to  which,  when  produced  by 

the  said  ,  your  orator  prays  leave  to  refer,  will  more  fully 

and  at  large  appear. 

And  your  orator  further  shows  unto  your  Honor,  that  in 
order  to  secure  the  payment  of  the  said  bond,  your  orator,  on 
the  said  day  of  ,  eighteen  hundred  and  ,  did 

deliver  to  the  said  a  certain  indenture  of  mortgage,  duly 

signed,  sealed   and   acknowledged,  made   by   your  orator  and 
,  his  wife,  to  the  said  ,  bearing  date  the  day 

of  ,  eighteen  hundred  and  ,  in  and  by  which  your 

orator  and  his  said  wife  did  grant,  bargain,  sell  and  convey  unto 
the  said  ,  his  heirs  and  assigns  forever,  the  same  two  lots 

of  land  and  premises  hereinbefore  particularly  described,  with  a 
proviso  or  condition  therein  contained,  that  if  your  orator,  his 
heirs,  executors  or  administrators,  should  pay,  or  cause  to  be 
paid,  unto   the   said  ,  his   executors,  administrators   or 

assigns,  the  just  and  full  sum  of  dollars,  with  interest 

thereon,  on  the  day  of  ,  eighteen  hundred  and  , 

according  to  the  condition  of  the  said  bond  or  obligation,  then 
the  said  indenture  of  mortgage  and  everything  therein  contained 
should  cease  and  be  void,  anything  therein  contained  to  the  con- 
trary notwithstanding,  as  by  reference  to  the  said  indenture  of 
mortgage,  now  in  the  possession  of  the  said  ,  and  to 

which,  when  produced,  your  orator  prays  leave  to  refer,  will 
more  fully  and  at  large  appear. 


380  FORMS  OF   PLEADINGS. 

And  your  orator  further  shows,  that  on  or  about  the 
day  of  ,  eighteen  hundred  and  ,  the  said 

entered  into  possession  of  said  mortgaged  premises  as  such 
mortgagee  thereof,  and  as  such  mortgagee  has  ever  since  then 
remained,  and  still  is,  in  possession  thereof. 

And  your  orator  further  shows  unto  your  Honor,  that  prior 
to  and  on  the  day  of  ,  eighteen  hundred  and  , 

your  orator  was  under  the  belief  that  the  said  bond  did  not 
become  due  and  payable  until  the  day  of  ,  eighteen 

hundred  and  ,  and  for  that  reason  did  not  make  prepara- 

tions to  pay  the  same  on  the  day  of  ,  eighteen  hun- 

dred and  .     On  the  day  last  named,  your  orator,  much  to 

his  astonishment,  learned  that  said  bond  was  then  due  and  pay- 
able. On  or  about  the  day  of  ,  eighteen  hundred 
and  ,  your  orator  took  the  money  to  pay  the  said  bond 
to  the  house  in  which  said  then  resided,  &c.,  (state  the 
circumstances  of  the  tender  particularly,  and  of  the  refusal  to 
receive  the  money.) 

And  your  orator  further  shows,  that  the  said  tender  was  an 
unconditional  offer  of  said  money  in  payment  of  said  bond  and 
mortgage  without  requiring  any  receipt,  or  even  the  giving  up 
of  the  said  bond  and  mortgage,  or  either  of  them. 

And  your  orator  further  shows,  that  ever  since  the 
day  of  ,  eighteen  hundred  and  ,  he  has  been,  and 

now  is,  able,  ready,  willing  and  desirous  to  pay  the  amount  of 
the  principal  and  interest  due  on  the  said  bond  and  mortgage, 
but  the  said  ,  or  any  one  for  him,  at  no  time  since  the 

day  of  ,  eighteen  hundred  and  ,  has  made 

demand  upon  or  requested  your  orator  to  pay  the  said  bond  and 
mortgage. 

And  your  orator  further  shows,  that  he  was  greatly  incon- 
venienced and  has  been  greatly  damaged  by  the  refusal  of  the 
said  to  remove  from  the  said  lands  and  premises,  and  by 

his  withholding  the  possession  thereof  from  your  orator,  as 
said  has  done  ever  since  the  day  of  ,  and 

still  does. 

And  your  orator  farther  shows,  that  after  the  said  tender  was 
made  to  said  as  aforesaid,  and  on  or  about  the  day 


REDEMPTION.  381 

of  ,  eighteen  hundred  and  ,  your  orator  commenced 

an  action  of  ejectment  in  the  Supreme  Court  of  this  state  against 
the  said  ,  to  recover  possession  of  the  land  and  premises 

hereinbefore  described.  And  such  proceedings  were  had  in  the 
said  action  of  ejectment,  that  a  trial  was  had  therein  at  a  Supreme 
Court  Circuit   holden  at  ,  in  and  for  the  said  county 

of  ,  on  the  day  of  ,  eighteen  hundred  and 

,  before  the  Honorable  the  Chief  Justice  of  the  Supreme 
Court,  (both  parties  having  consented  to  try  said  action  before 
the  said  Chief  Justice,  without  a  jury,  and  to  waive  a  trial  by 
jury.)  Upon  the  said  trial  the  said  defendant  offered  and  read 
in  evidence  the  aforesaid  bond  and  mortgage,  and  under  them 
claimed  to  hold  the  possession  of  the  said  lands  and  premises  as 
a  mortgagee  in  possession,  and  offered  no  other  defence  to  said 
action.  In  reply  to  said  defence,  your  orator  proved  the  making 
of  the  aforesaid  tender,  and  the  said  's  refusal  to  accept 

the  money  when  tendered.  But  the  said  Chief  Justice  sustained 
the  said  defence,  and  found  in  favor  of  said  ,  and  ruled 

that  a  tender  made  to  the  said  after  the  day  of 

,  and  not  accepted  by  said  ,  did  not,  at  law,  divest 

and  terminate  the  lien  of  the  said  mortgage,  nor  extinguish  or 
terminate  the  right  at  law  of  said  to  hold  possession  of 

said  premises  by  virtue  of  said  mortgage;  and  at  the  term  of 
,  eighteen   hundred   and  ,  of  the   said  Supreme 

Court,  judgment  in  the  said  action  of  ejectment  was  rendered 
against  your  orator  and  in  favor  of  the  said  ,  for  costs. 

And  your  orator  further  shows,  that  at  the  trial  of  the  said 
action  of  ejectment,  in  open  court,  when  your  orator  was  on  the 
stand  as  witness  in  said  trial,  your  orator  produced  dollars 

in  United  States  legal-tender  notes  of  various  denominations, 
and  the  attorney  of  your  orator  then  and  there  offered  to  pay 
the  said  bond  and  mortgage,  and  tendered  to  the  attorney  of 
said  of  said  money  the  sum  of  dollars,  which  the 

attorney  of  said  then  and  there  refused  to  receive,  and 

then  the  attorney  of  your  orator  laid  on  the  table  before  the 
attorney  of  said  the  said  package  of  legal-tender  notes 

containing  dollars,  and  requested  the  attorney  of  said 

to  take  from  said  package  whatever  he,  said  attorney,  or  said 


382  FORMS  OF   PLEADINGS. 

,  claimed  to  be  due  on  said  bond  and  mortgage;  but  he 
refused  to  do  so,  and  refused  to  receive  any  money  in  payment 
of  the  said  bond  and  mortgage.  Said  tender  last  mentioned 
was  made  to  the  attorney  of  said  because  he  then  and 

there  had  the  said  bond  and  mortgage  in  his  possession,  and 
because  said  was  not  then  and  there  personally  present. 

And  your  orator  shows,  that  if  he  could  then  have  extinguished 
said  bond  and  mortgage,  and  have  had  them  delivered  to  him, 
he  was  then  willing  to  pay  for  them  the  said  sum  of 
dollars,  not  because  said  was  entitled  equitably  or  legally 

to  receive  that  amount,  but  merely  to  purchase  his  peace. 

And  your  orator  submits,  that  he  is  entitled  to  redeem  the 
said  mortgage,  and,  in  redemption,  should  not  be  required  to 
pay  or  allow  anything  more  than  the  principal  sum  named  in 
the  condition  of  said  bond,  and  should  not  be  required  to  pay 
any  interest  thereon,  or  if  any,  at  the  most,  only  interest  from 
the  day  of  ,  eighteen  hundred  and  ,  to  and 

including  the  day  of  ,  eighteen  hundred  and  ; 

and  that  after  the  day  last  named,  no  interest  should  be  com- 
puted or  charged  on  the  said  bond  and  mortgage. 

And  your  orator  further  submits  and  charges,  that  the  said 
should  be  charged  with,  and  required  to  apply  on,  said 
bond  and  mortgage,  the  full  value  of  the  use  or  rents  and  profits 
of  the  said  mortgaged  premises  from  the  day  of  , 

eighteen  hundred  and  ,  until  he  shall  give  possession  of 

said  premises  to  your  orator. 

And  your  orator  further  shows,  that  the  just  value  under  the 
circumstances  of  the  said  mortgaged  premises,  since  the 
day  of  ,  eighteen  hundred  and  ,  is  not  less  than  at 

the  rate  of  dollars  a  year ;  and  that  your  orator  should  be 

allowed,  and  the  said  should  be  charged  for,  the  use  and 

occupation  of  said  premises  by  said  for  all  the  time  since 

the  day  of  ,  eighteen  hundred  and  ,  at  a  rate 

not  less  than  dollars  a  year. 

And  your  orator  further  shows,  that  he  has  frequently  and  in 
a  friendly  manner  applied  to  the  said  to  receive  the  money 

secured  by,  and  due  and  owing  on,  the  said  bond  and  mortgage, 
and  to  deliver  possession  to  your  orator  of  the  said  mortgaged 


REDEMPTION.  383 

premises;  and  your  orator  well  hoped  that  the  said 
would  have  complied  with  those  reasonable  requests,  as  in  equity 
and  good  conscience  he  ought  to  have  done :  But  the  said 
defendant  refuses  to  receive  payment  of  the  said  bond  and  mort- 
gage, and  to  deliver  possession  of  said  mortgaged  premises  to 
your  orator.     In  consideration  whereof,  &c. 

To  the  end  therefore,  &c.,  {as  on  page  10.)  And  that  your 
orator  may  be  decreed  to  be  entitled  to  redeem  the  said  mort- 
gage, (your  orator  hereby  tenders  himself  ready  and  willing  to 
pay  at  any  time,  when  permitted  so  to  do,  whatsoever  sum  of 
money  this  honorable  court  shall  adjudge  to  be  the  sum  which 
he  should  pay,  to  pay,  satisfy  and  discharge  the  said  mortgage ;) 
that  it  may  be  decreed  that  the  said  defendant  is  not  entitled  to 
charge  or  receive  any  interest  on  the  said  sum  of  dollars 

named  in  the  condition  of  said  bond  and  in  the  proviso  of  said 
mortgage  ;  that  the  said  defendant  may  be  decreed  to  be  liable  to 
account  for  and  pay  to  your  orator,  by  deducting  the  same  from 
the  amount  equitably  due  upon  said  bond  and  mortgage,  the 
rents  and  profits  and  value  of  the  use  of  the  mortgaged  premises 
since  the  day  of  ,  eighteen  hundred  and  ; 

and  that  the  said  defendant  may  be  decreed,  upon  payment  or 
tender  to  him  by  your  orator  of  the  amount  decreed  to  be  equit- 
ably due  to  the  said  defendant  on  the  said  bond  and  mortgage, 
to  deliver  to  your  orator  the  said  bond  and  mortgage,  and  also 
full  and  exclusive  possession  of  all  and  every  part  of  the  said 
mortgaged  premises ;  and  that  an  account  may  be  taken,  under 
the  direction  of  this  honorable  court,  of  what  is  equitably  due 
and  owing  by  your  orator  on  the  said  bond  and  mortgage,  and 
also  of  what  is  due  from,  and  chargeable  against,  the  said 
defendant  in  respect  of  the  rents  and  profits,  use  and  occupation 
of  the  said  mortgaged  premises  since  the  day  of  , 

eighteen  hundred  and  ;  and  that  your  orator  may  have 

such  other  or  further  relief  in  the  premises  as  shall  be  agreeable 
to  equity,  and  as  the  nature  and  circumstances  of  his  case  may 
justify  and  require. 

May  it  please  your  Honor  {insert  prayer  for  suhpcena.) 

{Signature  of  solicitor  and  counsel.) 


384  FORMS   OF   PLEADIKGS. 

Decree  for  redemption  of  mortgaged  premises.(a) 

{Title  of  cause.) 

As  in  form  on  page  179  to  the  end  of  first  line  on  page  180, 
according  to  the  circumstances  of  the  case,  then  add,  "and  the 
said  Chancellor  doth,  by  virtue  of  the  power  and  authority  of 
this  court,  hereby  order,  adjudge  and  decree,  that  the  said  (com- 
plainant) is  entitled  to  redeem  the  mortgage  mentioned  and 
described  in  his  bill  of  complaint  in  this  cause ;  and  that  he  is 
chargeable  with  interest  on  said  mortgage  and  the  bond  secured 
thereby,  from  and  including  [date,)  until  the  amount  due,  as  the 
same  shall  be  ascertained  in  this  cause,  shall  be  paid  or  tendered 
to  the  said  {defendant ;)  and  that  said  {defendant)  is  chargeable, 
and  should  be  charged  with  the  rents  and  profits  of  the  said 
mortgaged  premises,  from  and  including  {date,)  until  he  shall 
deliver  full  possession  of  said  premises  to  the  said  {complainant,) 
at  the  rate  of  dollars  a  year. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  it  be 
referred  to  ,  one  of  the  masters  of  this  court,  to  take  an 

account,  and  report  to  this  court,  the  amount  due  to  the  said 
(defendant)  on  the  principles  of  this  decree,  for  principal  and 
interest  on  his  said  bond  and  mortgage ;  and  the  said  master  is 
to  take  an  account  of  the  rents  and  profits  of  the  said  mortgaged 
premises ;  and  what  shall  be  coming  on  the  said  account  of  rents 
and  profits,  is  to  be  deducted  out  of  what  shall  be  found  due  to 
the  said  (defendant)  for  principal  and  interest  on  his  said  bond 
and  mortgage;  and  it  is  further  ordered,  adjudged  and  decreed, 
that  what,  upon  the  balance  of  the  said  account,  shall  be  certi- 
fied by  the  said  master  to  be  due  to  the  said  (defendant)  for  his 

(a)  If  the  mortgagor  is  permitted  to  And  it  directs  that,  upon  the  corn- 
redeem,  the  decree  directs  a  reference  plainant's  default,  the  bill  be  dis- 
to  a  master  to  ascertain  and  report  the  missed,  with  costs.  The  time  allowed 
amount  due  for  principal  and  interest,  for  the  redemption  is  not  fixed  and 
and  orders  the  complainant  to  pay  that  certain,  but  rests  in  the  sound  discre- 
ambunt  within  a  specified  time  after  tion  of  the  court,  to  be  regulated  by- 
confirmation  of  the  master's  report,  circumstances.  Perine  v.  Dunn,  4 
together  with  the  costs,  and  that  upon  John.  Ch.  140.  In  general,  the  time 
his  doing  so,  the  mortgagee  shall  con-  allowed  will  not  be  afterwards  en- 
vey  to  him  the  mortgaged  premises.  larged.     Ibid. 


REDEMPTION.  385 

principal^and  interest,  the  said  {complainant)  do  pay,  less  the 
taxed  costs  of  this  suit,  to  the  said  {defendant,)  within 
days  after  the  said  master's  report  shall  have  been  confirmed  by 
the  Chancellor,  at  such  place  as  the  said  master  shall  appoint; 
and  that  thereupon,  the  said  {defendant)  do  forthwith  remove 
from  the  said  mortgaged  premises,  and  deliver  full  possession 
thereof  unto  the  eaid  {complainant),  or  unto  such  person  or  per- 
sons as  he  shall  direct,  free  and  discharged  of  all  encumbrances, 
done  by  him,  the  said  {defendant,)  or  any  person  claiming  by, 
from  or  under  him,  and  deliver  unto  the  said  {complainant)  the 
said  bond  and  mortgage,  and  also  all  deeds  and  writings  in  his 
custody  or  under  his  control,  relating  to  the  said  mortgaged 
premises ;  but  in  default  of  the  said  complainant's  so  paying 
unto  the  said  defendant  what  shall  be  so  certified  to  be  due  to 
him  for  principal  and  interest  as  aforesaid,  after  such  deductions 
made  thereout  as  aforesaid,  it  is  ordered  that  the  said  complain- 
ant's bill  do,  from  thenceforth,  stand  dismissed  out  of  this  court, 
with  costs  to  be  taxed. 

Order  confirming  report  in  suit  to  redeem. 

{Title  of  cause.) 
Upon  reading  a  report  upon  file,  made  by  ,  one  of  the 

masters  of  this  court,  dated  {date,)  whereby  it  appears  {recite  the 
substance  of  the  report,)  and  no  cause  being  shown  or  appearing 
against  confirming  the  said  report:  It  is. {date,)  ordered,  that  the 
said  report,  and  all  the  matters  and  things  therein  contained,  do 
stand  ratified  and  confirmed. 

Order  dismissing  bill  for  redemption. (a) 

{Title  of  cause.) 
This  matter  being  opened  to  the  court  by,  &c.,  and  it  appear- 
ing that  ,  the  master  to  whom  it  was  referred  to  take  an 
account  of  what  was  due  to  the  defendant  in  this  cause  on  his 

(a)  Wliere  a  party  fails  to  redeem       a   bar  of  tlie  equity  of  redemption, 
within  the  time   allowed,  it  is  usual       Ferine  v.  Dunn,  supra. 
to  dismiss  the  bill,  which  amounts  to 


386  FOEMS   OF   PLEADINGS, 

mortgage  in  the  bill  of  complaint  mentioned,  has  made  his 
report,  from  which  it  is  ascertained  that  there  was  due  to  the 
said  defendant,  on  his  mortgage,  at  the  date  of  said  report,  the 
sum  of  dollars;  and  it  further  appearing  that  the  said 

report  has  been  duly  confirmed;  and  now,  on  reading  and  filing 
the  affidavit  of  the  said  defendant,  showing  that  the  amount 
reported  due  to  the  said  defendant  as  aforesaid,  has  not  been 
paid  pursuant  to  the  decree  of  this  court,  made  on  the 
day  of  ,  and  the  said  master's  report,  nor  any  part  thereof, 

but  that  the  said  sum  of  dollars,  and  every  part  thereof, 

still  remains  due  and  owing  from  the  complainant  to  the  said 
defendant:   It  is,  on  this,  &c ,  on  motion  of  ,  of  counsel 

for  the  defendant,  no  person  appearing  on  behalf  of  the  com- 
plainant, [although  due  notice  has  been  given  him  of  this  applica- 
tion,] ordered  and  decreed  that  the  complainant's  bill  in  this 
cause  do  stand  dismissed  out  of  this  court,  with  costs  to  be  taxed; 
and  that  the  defendant  have  execution  for  such  costs,  according 
to  the  practice  of  this  court. 


STRICT  FORECLOSURE. 

Bill  for  strict  foreclosure. (a)  The  form  of  a  hill  for 
strict  foreclosure  is  nearly  the  same  as  that  of  a  bill  of  foreclosure 
and  sale.  The  prayer,  however,  is  different,  and  in  the  following 
form: 

To  the  end,  &c.,  and  that  the  said  may  discover,  and  in 

manner  aforesaid  set  forth,  whether  there  is  or  are  any  other, 
and  what  encumbrance  or  encumbrances  upon  or  affecting  the 
said  mortgaged  premises,  and  if  so,  in  whom  the  same  is  or  are 
vested ;  and  whether  the  same  is  or  are  not  subsequent  to  your 
orator's  said  mortgage,  or  how  otherwise;  and  that  an  account 
may   be  taken  by  and  under  the  direction  of  this   honorable 

(a)  The  parties  to  a  bill  for  strict  And  the  proceedings  from  the  filing 
foreclosure  are,  in  general,  the  same  of  the  bill  to  the  decree  are  also  the 
as   to   a  bill  of  foreclosure  and  sale.      same.     2  Barb.  Ch.  Pr.  187,  et  seq. 


STRICT   FORECLOSURE.  387 

court,  of  what  is  due  and  owing  to  your  orator  for  principal  and 
interest  on  his  eaid  mortgage;  and  that  the  said  may  be 

decreed  to  pay  to  your  orator  what  may  be  found  due  to  him  on 
taking  the  said  account,  together  with  his  costs  of  this  suit,  by  a 
short  day,  to  be  appointed  by  this  honorable  court  for  that  pur- 
pose; or  in  default  thereof,  that  the  said  ,  and  all  persons 
claiming  by,  from  or  under  him,  may  be  absolutely  debarred  and 
foreclosed  of  and  from  all  right  and  equity  of  redemption  in  or 
to  the  said  mortgaged  premises  and  every  part  thereof;  and  that 
he  may  deliver  up  to  your  orator  all  deeds,  papers  or  writings 
in  his  custody  or  power  relating  to  or  concerning  the  said  mort- 
gaged premises  or  any  part  thereof.  And  that  {pray 67'  for 
general  relief.) 

{Prayer  for  subpoena.) 

Decree  for  strict  foreclosure. (a)  {Commencement  as  on 
pages  178  and  179,  and  add,  "that  it  be  referred  to  ,  one 

of  the  masters  of  this  court,  to  compute  and  ascertain  what  is 
due  to  the  complainant  for  principal  and  interest  upon  his  bond 
and  mortgage  mentioned  in  the  bill  in  this  cause.") 

{If  the  mortgagee  is  or  has  been  at  any  time  in  possession,  add, 
^'and  that  the  said  master  take  an  account  of  the  rents  and  profits 
of  the  mortgaged  premises  received  by  the  said  complainant,  or 
any  person  or  persons  by  his  order  or  for  his  use,  and  deduct  what 
shall  appear  to  be  due  on  account  of  such  rents  and  profits  from 
such  sum  which  shall  be  found  due  to  the  complainant  for 
principal  and  interest  upon  his  said  bond  and  mortgage.") 

And  it  is  further  ordered  and  decreed,  that  upon  the  defend- 
ant's paying  to  the   complainant   the  amount  which  shall  be 

(a)  Upon  a  bill  for  strict  foreclosure,  the  foreclosure,  and  for  the  best  price, 

the  estate  becomes  the  property  of  the  it  has  been  held  that  he  may  proceed 

mortgagee,  in  the  character  of  pur-  against  the  mortgagor  on  the  bond  for 

chaser.     He  cannot  have  recourse  at  the   difference.      Took   v.   Hartley,   2 

law  on  the  bond  for  the  deficiencj',  so  Bro.  C.  C.  125  ;  S.  C,  Dick.  785 ;  but 

long  as  he  keeps  the  estate,  because  see  also,  4  Kent's  Com.  182.    The  time 

the  value  of  it  is  not  ascertained,  and  allowed  for  redemption  upon  a  bill  of 

the  mortgagee  cannot  say  what  pro-  strict  foreclosure,  rests  in  the  discre- 

portion  of  the  debt  remains  due ;  but  tion  of  the  court, 
if  the  mortgagee  sells  the  estate  after 


388  FORMS   OF   PLEADINGS. 

reported  due  to  him  for  principal  and  interest,  together  with  his 
taxed  costs  of  this  suit,  within  days  after  the  said  master's 

report  shall  have  been  confirmed,  at  such  time  and  place  as  the 
said  master  shall  appoint^  the  said  complainant  do  deliver  up 
possession  of  the  mortgaged  premises  to  the  said  defendant,  and 
cancel  and  discharge  said  mortgage  of  record.  And  it  is  further 
ordered  and  decreed,  that  in  default  of  the  said  defendant's  pay- 
ing to  the  said  complainant  such  principal,  interest  and  costs  as 
aforesaid,  by  the  time  limited  as  aforesaid,  the  said  defendant 
stand  absolutely  debarred  and  foreclosed  of  and  from  all  equity 
of  redemption  of,  in  and  to  the  said  mortgaged  premises. 
{For  order  confirming  mader^s  report,  seepage  385.) 

Final  order  for  foreclosure  upon  default  of  defend- 
ant, (a) 

{Title  of  cause.) 

This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  that  by  the  decree  dated, 
&c.,  it  was  ordered  and  decreed,  that  it  be  referred  to  , 

one  of  the  masters,  &c.,  to  compute,  &c.,  and  to  take  an  account, 
&c. ;  and  it  further  appearing,  that  in  pursuance  of  said  decree 
the  said  master,  on  the  (date,)  reported  that  there  would  be  due 
to  the  complainant,  for  principal  and  interest,  on  his  said  mort- 
gage, on  the  {date,)  the  sum  of  dollars,  which  said  sum, 
together  with  the  costs  of  this  suit,  the  said  defendant  was 
thereby  required  to  pay  to  the  complainant,  on,  &c.,  at,  &c.; 
that  he  attended  on  the  said  {date,)  in  order  to  receive  from  the 
said  defendant  the  said  sum  of  dollars,  together  with  the 
said  costs,  but  the  said  defendant  did  not,  nor  did  any  person  on 

(a)  If  the  mortgage  money  is  not  decree    of   strict    foreclosure,    which 

paid,  upon  an  affidavit  of  having  duly  does  not  find  the  amount  due,  which- 

attended  and  of  the  non-payment  of  allows  no   time   for  payment  of  the 

the  money,  the  complainant  is  enti-  debt  and   redemption   of  the   estate, 

tied   to  an  order  of  course  that   the  and  which  is  final  and  conclusive  in 

defendant  stand   absolutely  debarred  the  first  instance,  cannot,  unless  au- 

and  foreclosed  of  and  from  all  right,  thorized  by  some  special  statute,  be 

title,  suit  and  equity  of  redemption  of,  sustained.     Clark  v.  Reyburn,  8  Wall. 

in  and  to  the  mortgaged  premises.     1  318. 
Smith  406;  2  Barb.  Ch.  Pr.  189.     A 


STEICT   FORECLOSURE.  389 

his  behalf,  attend  to  pay  said  sum;  and  that  the  said  moneys 
have  not,  nor  has  any  part  thereof  since  been  paid  to  the  com- 
plainant, but  that  the  whole  thereof  and  the  said  costs  still 
remain  due  and  owing  to  him :  It  is,  therefore,  on  this,  &c., 
ordered  and  decreed,  that  the  defendants  do  from  henceforth 
stand  absolutely  debarred  and  foreclosed  of  and  from  all  equity 
of  redemption  of,  in  and  to  the  said  mortgaged  premises. 

Bill  for  strict  foreclosure  against  an  infant.(a) 
(Address.) 

Commence  as  on  pages  331  to  335,  according  to  the  fads,  then 
proceed  as  follows :  And  your  orator  further  shows,  that  after- 
wards, to  wit,  on  or  about  the  day  of  ,  a.  d.  eighteen 
hundred  and  ,  the  said  filed  his  bill  of  complaint  in 
this  honorable  court  for  the  foreclosure  of  the  said  mortgage,  in  a 
certain  suit  between  him,  the  said  ,  as  complainant,  and 
and  ,  his  wife,  {and  others,)  as  defendants ;  and  that  in  such 
suit  such  proceedings  were  had  that,  afterwards,  to  wit,  on  or  about 
the  day  of  ,  a.  d.  eighteen  hundred  and  ,  a  final 
decree  was  made,  wherein  and  whereby  it  was  ordered,  adjudged 
and  decreed,  that  the  said  mortgaged  lands  and  premises,  with 
the  appurtenances  and  all  the  estate,  right,  title,  interest,  use, 

(a)  It  appears  that  in  a  case  of  a  to   have  suggested   that   a  decree  for 

legal  foreclosure  it  is  still  necessary  to  sale  was  the  proper  course  as  against 

insert  in  the  decree  a  clause  allowing  an  infant  defendant ;  but  in  the  award 

an   infant   time  after  he  becomes   of  of  such  decree  no  day  to  show  cause 

age  (umalli/  six  months)  to  show  cause  is  given.     Now,  however,  in  all  fore- 

against  the  decree,  but  the  only  cause  closure  suits  the  court  is  empowered, 

which  can  be  shown  is  error  in  the  if  it  thinks  fit,  to  direct  a  sale  instead 

decree;  he  may  not  unravel  the  ac-  of  a  foreclosure,  and  where  it  is  for 

count,  nor  is  he  so  nauch  as  entitled  to  the  benefit  of  the  infant  it  is  the  prac- 

redeem  the  mortgage  by  paying  what  tice  to  do  so.    Where  the  value  of  the 

is  due.     Booth  v  Rich,  1  Vern.  295;  mortgaged   property  was  clearly  less 

Seivbury  v.  Marten,  15  Jur.  166,  V.  C.  than  the  amount  due  on  the  mortgage 

Ld.  a ;  Mallack  v.  Gortov,  3  P.  Wms.  the   court,  at  the   hearing,  made   an 

:^52 ;   see  2  Kent  Com.  245  ;  Coffin  v.  absolute  decree  for  foreclosure  against 

Heath,  6  Met.  81;  Mills  v.  Dennis,  3  an   infant   defendant   upon  the  com- 

Johns.  Ch.  368.     In  Price  v.  Carver,  3  plainant    paying    the    infant's    costs. 

M.  &  C.  157,  Lord  Cottenham  seems  Croxon  v.  Lever,  10  Jur.  (iV.  S.)  87. 


390  FORMS   OF   PLEADINGS. 

property,  daim  and  demand  of  the  said  defendants  of,  in,  to  and 
out  of  the  same,  should  be  sold  to  pay  and  satisfy  unto  the  said 
complainant  the  sum  of  dollars  and  cents,  for  prin- 

cipal and  interest  due  upon  the  said  mortgage,  with  lawful  in- 
terest thereon  from  and  after  the  day  of  ,  in  the 
year  last  aforesaid,  until  the  same  be  paid  and  satisfied,  together 
with  the  complainant's  taxed  costs  of  suit,  and  that  for  that  pur- 
pose a  writ  of  fieri  facias  should  issue,  to  be  directed  to  the 
sheriff  of  the  said  county  of  ,  commanding  him  to  make 
sale  as  aforesaid,  and  to  make  return  into  this  honorable  court 
of  any  surplus  money  arising  from  such  sale,  and  that  the  costs 
of  the  said  complainant  were  duly  taxed  at             dollars  and 

cents ;  and  that  afterwards,  to  wit,  on  or  about  the 
day  of  last  aforesaid,  a  writ  o^  fieri  facias  was  duly  issued 

out  of  the  eaid  court,  directed  to  the  said  sheriff,  and  command- 
ing him  to  make  sale  as  aforesaid ;  and  that  said  writ  was  duly 
delivered  to  the  said  sheriff;  and  that  afterwards,  to  wit,  on  or 
about  the  day  of  ,  in  the  year  last  aforesaid,  the 

said  sheriff,  having  duly  advertised  the  same,  duly  offered  and 
exposed  the  said  mortgaged  lands  and  premises  for  sale,  at 
public  vendue,  and  duly  struck  off  and  sold  the  same  unto  your 
orator,  he  being  then  and  there  the  highest  bidder  for  the  same^ 
for  the  sum  of  dollars ;  and  that  afterwards,  to  wit,  on  or 

about  the  day  and  year  last  aforesaid,  the  said  sheriff  duly 
granted  and  conveyed  the  said  land  and  premises,  with  the  ap- 
purtenances, unto  your  orator,  for  the  consideration  aforesaid, 
in  and  by  his  certain  deed  of  conveyance,  bearing  date  on  the 
said  day  and  year  last  aforesaid ;  and  that  said  deed  was  duly 
signed  and  executed,  and  was  duly  approved  and  ordered  to  be 
recorded,  and  was  duly  recorded  in  Book  of  Deeds,  for 

the  said  county  of  ,  on  page  ,  &c. ;  and  your  orator 

prays  leave  to  refer,  not  only  to  said  deed  and  the  said  record 
thereof,  but  also  to  the  record  of  the  said  proceedings  in  said 
suit,  and  the  said  writ  of  fieri  facias  and  the  sheriff's  return 
thereupon. 

And  your  orator  further  shows  that  recently,  and  since  the 
purchase  by  him  made  as  aforesaid  of  the  said  land  and  prem- 
ises, and  since  his  acceptance  of  the  said  deed  of  conveyance 


STRICT   FORECLOSURE.  391 

therefor  from  the  said  sheriff,  it  hath  been  discovered  that  one 
of  the  children  and  heirs  of  the  said  ,  begotten  upon  the 

body  of  his  said  wife,  the  said  ,  to  wit,  his  certain  child 

and  heir  known  as  ,  a  minor,  and  being  between  the  ages 

of  fourteen  acd  twenty- one  years,  and  unmarried,  was  accident- 
ally omitted  from  the  list  of  the  defcEdants  in  the  said  proceed- 
ings of  foreclosure  and  sale;  and  that,  as  against  her,  the  said 
,  the  said  proceedings  are  irregular,  incomplete  and  incon- 
clusive ;  and  that  her  interest,  (if  any  she  have,)  in  the  said  land 
and  premises,  remains  as  before  the  said  proceedings  were  had 
or  taken ;  and  that  if  she  have  any  such  interest,  she  is  now 
entitled,  or  may  hereafter  be  entitled,  to  redeem  said  land  and 
premises  upon  the  payment  of  said  mortgage  moneys,  and 
interest,  and  the  taxed  costs  of  said  suit,  and  the  execution  fees 
upon  the  said  sale,  and  the  costs  of  the  present  proceeding,  and 
in  no  other  way  or  manner  whatsoever. 

And  your  orator  expressly  charges  and  insists,  that  he  pur- 
chased the  said  land  and  premises  at  the  said  sale  by  the  said 
sheriff,  in  good  faith,  and  for  an  actual  consideration;  and  that 
as  the  grantee  of  the  said  sheriff,  under  the  said  writ  of  fieri 
facias,  he  is  subrogated  to  the  rights  of  the  said  ,  as  the 

complainant  in  the  said  suit;  acd  that  the  said  deed  of  convey- 
ance of  said  land  and  premises,  by  the  said  sheriff  unto  your 
orator,  operated  as  a  voluntary  assignment  of  the  said  deed  of 
mortgage,  together  with  the  accompanying  bond,  and  all  moneys 
due  and  to  grow  due  upon  the  same;  and  that  your  orator  is 
therefore  entitled  to  receive  all  of  the  said  moneys,  with  interest 
and  costs ;  and  that  your  orator  is  also  entitled  to  the  protection 
and  aid  of  this  honorable  court  in  the  enforcement  of  such  claim 
against  the  said  ,  or  any  other  person  or  persons  deriving 

title  from  or  through  her  to  the  said  land  and  premises,  or  any 
part  of  the  same. 

And  your  orator  further  shows,  that  dollars  and 

cents,  for  principal  and  interest  money  mentioned  in  the  said 
bond  or  obligation,  and  secured  thereby  and  by  the  said  de(d  of 
mortgage,  with  large  arrears  of  interest,  to  wit,  with  interest  at 
the  rate  of  per  cent,  per  annum,  from  and  after  the  said 


392  FORMS   OF   PLEADINGS. 

day  of  ,  A.  D.  eighteen  hundred  ard  ,  (as 

stated  in  the  said  final  decree  of  foreclosure,)  still  remains  due 
and  owing  to  your  orator,  no  part  thereof  having  been  paid  to 
your  orator,  so  that  your  orator  is  greatly  delayed  and  disap- 
pointed in  the  receipt  of  the  said  moneys,  by  means  of  which 
said  several  premises  the  said  deed  of  mortgage,  and  the  estate 
thereby  mortgaged  as  aforesaid,  have  become  absolute  in  your 
orator  and  his  heirs. 

And  your  orator  further  shows  and  expressly  charges,  that 
the  said  mortgaged  premises  are  a  slender  and  scanty  security 
for  the  payment  of  the  said  principal  and  interest  moneys  so  due 
to  your  orator  as  aforesaid,  and  that  he  or  some  other  person  or 
persons  for  him  hath  frequently  and  in  a  friendly  manner 
applied  to  the  said  ,  and  requested  her  to  pay  and  dis- 

charge the  said  principal  and  interest  moneys  so  due  to  your 
orator  on  the  said  bond  or  obligation  and  deed  of  mortgage 
hereinbefore  mentioned  and  set  forth;  and  your  orator  well 
hoped  that  she  would  have  complied  with  such  reasonable 
requests  of  your  orator,  and  would  have  paid  to  him  the  said 
principal  and  interest  moneys  so  as  aforesaid  due  to  your  orator 
on  the  said  bond  or  obligation  and  deed  of  mortgage,  as  in  equity 
and  good  conscience  she  ought  to  have  done. 

In  tender  consideration  whereof,  and  forasmuch  as  your 
orator  hath  not  a  complete  and  safe  remedy  in  the  premises  at 
and  by  the  strict  rules  of  the  common  law,  nor  can  foreclose  the 
equity  of  redemption  of  the  said  mortgaged  premises,  or  safely 
sell  the  same  for  the  payment  and  satisfaction  of  the  said  prin- 
cipal and  interest  moneys  so  as  aforesaid  due  to  your  orator  on 
said  bond  and  obligation  and  deed  of  mortgage,  without  the  aid 
and  decree  of  this  honorable  court :  To  the  end,  therefore,  that 
the  said  may  discover,  and  upon  her  corporal  oath  set 

forth  whether  there  is  or  are  any  other  and  what  encumbrance 
or  encumbrances  upon  or  affecting  the  said  mortgaged  land  and 
premises,  and,  if  any,  in  whom  the  same  is  or  are  vested,  and 
whether  the  same  is  or  are  subsequent  to  your  orator's  said 
mortgage,  or  how  otherwise;  and  that  an  account  may  be  taken, 
by  and  under  the  direction  of  this  honorable  court,  of  what  is 


STRICT    FORECLOSURE.  393 

due  and  owing  to  your  orator  for  principal  and  interest  on  his 
said  mortgage;  and  that  the  said  may  be  decreed  to  pay 

to  your  orator  what  may  be  found  to  be  due  him  on  the  taking 
of  the  said  account,  together  with  the  costs  of  this  suit,  by  a 
short  day  to  be  appointed  by  this  honorable  court  for  that  pur- 
pose; and  in  default  thereof  that  the  said  defendants,  and  all 
persons  claiming  or  to  claim  under  them,  or  any  or  either  of 
them,  may  be  absolutely  debarred  and  foreclosed  of  and  from 
all  equity  of  redemption  or  claim  of,  in  and  to  the  said  mort- 
gaged premises,  and  every  part  and  parcel  thereof,  with  the 
appurtenances,  and  may  deliver  over  unto  your  orator  all  deeds, 
demises,  and  writings  whatever  relating  to  or  concerning  the 
same;  or  that  all  and  singular  the  eaid  mortgaged  premises,  with 
the  appurtenances,  may,  by  the  order  and  decree  of  this  honor- 
able court,  be  sold,  and  out  of  the  moneys  arising  from  the  sale 
thereof,  your  orator  may  be  paid  the  full  amount  of  the  said 
principal  sum  of  money  so  due  to  your  orator  on  the  said  bond 
or  obligation  and  deed  of  mortgage  as  aforesaid,  and  all  the 
interest  now  due  and  to  grow  due  thereon,  together  with  all 
your  orator's  costs  and  charges  in  this  behalf  sustained. 
{Prayer  Jor  general  relief  and  subpoena.) 

Interlocutory  decree. 

{2\tle  of  cause.) 
This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  that  due  notice  of  the 
order  of  this  court,  made  on  the  day  of  last  past, 

directing  the  said  defendant  (who  resides  out  of  the  State  of 
New  Jersey)  to  appear,  plead,  demur  or  answer  the  complain- 
ant's bill  of  complaint  on  or  before  the  day  of 
then  next,  and  now  instant,  has  been  duly  servtd  personally 
upon  the  said  defendant  in  the  manner  and  as  in  the  said  order 
directed  and  prescribed ;  and  that  ,  esquire,  the  clerk  of 
the  said  court,  hath  been  duly  assigned  and  appointed  the 
guardian  of  the  said  defendant,  (who  is  an  infant  under  the  age 
of  fourteen  years,)  by  whom  she  may  appear  and  answer  and 
defend  this  suit ;  and  that  an  appearance  in  said  suit  hath  been 


394  FOBMS   OF   PLEADINGS. 

duly  entered  for  said  defendant  by  the  said  guardian  ad  litems 
and  that  the  said  defendant  hath  not  filed  any  plea,  demurrer 
or  answer  to  said  bill  within  the  time  limited  by  law  and  the 
said  order,  but  hath  wholly  failed  and  neglected  so  to  do :  It  is 
thereupon,  on  this  day  of  ,  a.  d.  eighteen  hundred  ' 

and  ,  ordered,  adjudged  and  decreed,  that  it  be  referred 

to  ,  eequire,  one  of  the  masters  of  this  court,  to  ascer- 

tain the  truth  of  the  allegations  of  the  complainant's  said  bill, 
and  to  compute  and  ascertain  and  report  the  amount  due  to 
the  complainant  for  principal  and  interest  upon  the  certain 
bond  and  mortgage  mentioned  in  said  bill,  and  that  said  mas- 
ter take  an  account  of  the  rents  and  profits  of  the  mortgaged 
premises  received  by  the  said  complainant,  or  by  any  person  or 
persons  by  his  order  or  for  his  use,  and  deduct  what  shall  appear 
to  be  due  on  account  of  such  rents  and  profits  from  such  sum 
which  shall  be  found  to  be  due  to  the  said  complainant  for  prin- 
cipal and  interest  upon  said  bond  and  mortgage,  and  to  report 
accordingly;  and  also  to  ascertain  and  report  whether  the  mort- 
gaged premises  (if  the  same  shall  be  sold  under  the  order  and 
decree  of  this  court)  should  be  sold  together  or  in  parcels,  and, 
if  in  parcels,  in  what  order,  and  any  other  special  matter  he  may 
deem  proper  or  shall  appear  for  the  benefit  of  the  said  defendant; 
and  that  the  said  special  master  do  make  his  report  thereon  with 
all  convenient  speed. 

And  it  is  further  ordered  and  decreed,  that,  upon  the  said 
defendant's  paying  to  the  complainant  the  amount  which  shall 
so  be  reported  due  to  him,  for  principal  and  interest,  together 
with  his  taxed  costs  of  this  suit,  within  thirty  days  after  the  said 
master's  report  shall  have  been  confirmed,  at  such  time  and  place 
as  the  said  master  shall  appoint,  the  said  complainant  do  deliver 
up  possession  of  the  mortgaged  premises  to  the  said  defendant, 
and  cancel  and  discharge  said  mortgage  of  record ;  and  that,  ia 
default  of  such  payment,  in  the  manner  and  within  the  time 
aforesaid,  the  said  defendant  stand  absolutely  debarred  and  fore- 
closed of  and  from  all  equity  of  redemption  of,  in  and  to  the 
said  mortgaged  premises. 


STRICT   FORECLOSURE.  395 

Order  confirming  master's  report. 

( Title  of  cause.) 
This  matter  beicg  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  that  by  the  certain 
decree  of  the  court,  made  on  the  day  of  ,  A.  D. 

eighteen  hundred  and  ,  it   was   ordered,  adjudged  and 

decreed  that  it  should  be  referred  to  ,  esquire,  one  of  the 

masters  of  the  court,  to  ascertain  the  truth  of  the  allega- 
tions of  the  complainant's  bill,  and  to  compute  and  ascertain 
and  report  the  amount  due  to  the  complainant  for  principal  and 
interest  upon  the  certain  bond  and  mortgage  mentioned  in 
said  bill,  and  that  said  master  should  take  an  account  of  the 
rents  and  profits  of  the  mortgaged  premises  received  by  the 
complainant,  or  by  any  person  or  persons  by  his  order  or  for 
his  use,  and  deduct  what  shall  appear  to  be  due  on  account  of 
such  rents  and  profits  from  such  sum  which  shall  be  found  to 
be  due  to  the  said  complainant  for  principal  and  interest  upon 
said  bond  and  mortgage,  and  to  report  accordingly ;  and  also  to 
ascertain  and  report  whether  the  said  mortgaged  premises  (if 
the  same  shall  be  sold  under  and  by  the  order  and  decree  of  this 
court)  should  be  sold  together,  or  in  parcels,  and,  if  in  parcels, 
in  what  order;  and  any  other  special  matter  he  might  deem 
proper,  or  which  should  appear  for  the  benefit  of  the  said 
defendant ;  and  it  further  appearing,  that  in  pursuance  of  said 
decree,  the  said   master,  on   the  day  of  ,  a.  d. 

eighteen  hundred  and  ,  reported   that   there  would  be 

due  to  the  complainant  for  principal  and  interest  upon  his  said 
bond  and  mortgage,  on  the  date  last  aforesaid,  (that  being  the 
date  of  the  said  master's  report,)  the  sum  of  dollars  and 

cents,  and  that  he  had  taken  an  account  of  the  rents  and 
profits  of  the  mortgaged  premises,  received  by  the  complainant, 
or  by  any  person  or  persons  by  his  order  or  for  his  use,  and  that 
said  rents  and  profits  amount  to  the  sum  of  dollars,  and 

that  he  hath  deducted  the  said  last- mentioned  sum  from  the  said 
amount  so  as  aforesaid  due  for  principal  and  interest  upon  the 
said  bond  and  mortgage,  leaving  the  net  sum  of  dollars 

and  cents,  as  being  due  to  the  said  complainant,  on  the 


396  FORMS   OF   PLEADINGS. 

day  of  the  date  of  said  report,  for  principal  and  interest  upon 
the  said  bond  and  mortgage ;  and  that  if  the  mortgaged  premises 
shall  be  sold  under  and  by  the  order  and  decree  of  this  court, 
the  same  shall  be  sold  together,  and  not  in  parcels ;  and  that  he 
hath  appointed  ,  the  day  of  next,  between 

the  hours  of  o'clock  in  the  forenoon  and  o'clock  in 

the  afternoon,  and  his  office  in  the  ,  on  street,  in 

the  city  of  ,  in  the  county  of  ,  as  the  time  and  place 

when  and  where  the  said  defendant  shall  pay  to  the  complain- 
ant the  said  sum  of  dollars  and  cents,  as  the  amount 
so  reported  as  being  due  to  him,  the  said  complainant,  for  prin- 
cipal and  interest  as  aforesaid,  together  with  his  taxed  costs  of 
this  suit:  It  is,  on  this  day  of  ,  A.  d.  eighteen 
hundred  and  ,  by  his  Honor  ,  Chancellor  of  the 
said  State  of  New  Jersey,  ordered  that  the  said  master's  report, 
and  all  matters  and  things  therein  contained,  do  stand  ratified, 
confirmed  and  approved,  and  that  the  said  defendant  do  pay  to 
the  said  complainant  the  said  sum  of  dollars  and 
cents,  for  principal  and  interest  aforesaid,  at  the  time  and 
place  aforesaid,  as  so  appointed  by  the  said  master,  and  that 
thereupon  the  said  complainant  shall  deliver  up  the  possession 
of  the  said  mortgaged  premises  to  the  said  defendant,  and  cancel 
and  discharge  the  said  mortgage  of  record. 

Master's  report  of   defendant's    failure    to  attend 
and  redeem,  &c. 

(Title  of  cause.) 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey  : 

I,  ,  one  of  the  masters  of  the  said   Court  of  Chan- 

cery, do  hereby  respectfully  report  that,  pursuant  to  the  ap- 
pointment heretofore  made  by  me,  I  duly  attended,  at  my 
office,  in  the  ,  on  street,  in  the  city  of  >  in 

the  county  of  ,  on  ,  the  day  of  instant, 

between  the  hours  of  o'clock  in  the  forenoon  and 

o'clock  in  the  afternoon,  and  that  I  was  then  and  there  attended 
by  ,  esquire,  one  of  the  solicitors  of  the  complainant,  and 

who  was  then  acting  for  and  in  behalf  of  said  complainant,  and 


STRICT   FORECLOSURE.  397 

who  then  and  there  had  in  his  possession,  and  exhibited  to  me, 
the  certain  indenture  of  mortgage  and  the  accompanying  bond, 
which  were  duly  proved  before  me  (as  appears  by  my  former 
report,  bearing  date  on  the  day  of  last  past,)  and  upon 

which  I  have  reported  as  aforesaid  that  there  was  due  to  the 
complainant,  on  the  day  of  the  date  of  such  report,  the  net  sum 
of  dollars   and  cents,  for   principal   and   interest 

money ;  but  that  neither  the  said  defendant  nor  her  guardian 
ad  litem,  (although  he  was  duly  notified  of  the  time,  place  and 
object  of  such  appointment,  as  may  appear  by  a  copy  of  my 
notice  given  to  him,  hereto  annexed,  with  his  written  acknowledg- 
ment of  the  service  thereof  upon  him  endorsed  thereupon,)  nor 
any  other  person  or  persons  acting  in  his,  her  or  their  behalf, 
appeared  before  me  at  the  time  and  place  aforesaid,  or  at  any 
other  time ;  and  that  neither  the  said  defendant  nor  her  said 
guardian  ad  litem,  nor  any  other  person  or  persons  as  aforesaid, 
paid  or  offered  to  pay  to  the  said  complainant,  or  his  said 
solicitor,  the  said  sum  of  money  above  mentioned,  or  the  com- 
plainant's taxed  costs  of  suit,  or  any  part  thereof,  at  the  time 
and  place  aforesaid.  {Signature  of  master.) 

Dated  ,18     . 

New  Jersey,  ss, —  maketh  oath  and  saith — that  he  is 

one  of  the  solicitors  of  the  complainant  in  the  above-stated  suit, 
and  the  person  actually  having  the  charge  and  management  of 
the  said  suit,  and  that,  being  also  thereunto  specially  authorized 
by  the  said  complainant,  he  attended,  at  the  office  of  , 

esquire,  one  of  the  masters  of  the   said  court,  in  the  , 

on  street,  in  the  city  of  ,  in  the  county  of  , 

on  ,  the  day  of  instant,  between  the  hours 

of  o'clock  in  the  forenoon  and  o'clock  in  the  after- 

noon, and  that  he  then  and  there  had  in  his  possession  the 
certain  indenture  of  mortgage  mentioned  in  the  complainant's 
bill  of  complaint  in  the  said  cause,  to  wit,  a  certain  indenture 
of  mortgage,  made  by  one  to  one  ,  dated  , 

A.  D.  eighteen  hundred  and  ,  and  registered  in  Book 

of  Mortgages  for  the  said  county  of  ,  on  page  ,  to- 

gether with   the  certain  bond  or  obligation  accompanying  the 


398  FORMS   OF   PLEA.DINGS. 

same,  and  the  two  certain  deeds  of  assignment  thereof  mentioned 
and  set  forth  in  the  said  bill  of  complaint ;  and  that  this  depo- 
nent was  then  and  there  fully  authorized,  empowered  and  pre- 
pared, on  the  part  of  said  complainant,  to  carry  out  and  perform 
all  the  orders  and  directions  of  the  said  court,  as  contained  in  its 
certain  order  made  on  the  day  of  last  past ;  but  that 

neither  the  said  defendant,  nor  ,  esquire,  her  guardian  ad 

litem,  nor  any  other  person  or  persons  in  his,  her  or  their  behalf, 
attended  at  the  time  and  place  aforesaid ;  nor  have  or  hath  any 
or  either  of  them,  at  the  time  and  place  aforesaid,  or  at  any  time 
afterward,  paid,  or  offered  to  pay,  unto  this  deponent,  or  unto 
the  said  complainant,  the  certain  sum  of  money,  to  wit, 
dollars  and  cents,  which  was  found  and  reported  by  the 

said  master  to  be  due  to  the  said  complainant  for  principal  and 
interest  upon  the  said  bond  and  mortgage,  on  the  date  of  said 
report,  with  the  complainant's  taxed  costs  of  suit,  or  any  part 
thereof;  and  further  deponent  saith  not. 

Sworn,  &c.  {Signature.) 

Notice  to  guardian  ad  litem.    ' 

{Title  of  cause.) 
To  ,  guardian  ad  litem  of  ,  defendant : 

Sir — Take  notice  that,  in  pursuance  of  an  order  in  the  above- 
stated  cause,  made  on  the  day  of  last  past,  I  have 
appointed  ,  the  day  of  next,  between  the 
hours  of  o'clock  in  the  forenoon  and  o'clock  in  the 
afternoon,  and  my  office  in  the  ,  on  street,  in  the  city 
of  ,  in  the  county  of  ,  as  the  time  and  place  when 
and  where  the  defendant  shall  pay  to  the  complainant  the  sum 
of  dollars  and  cents,  as  and  for  the  net  amount  of 
principal  and  interest  money  found  to  be  due  to  him,  on  the 
day  of  instant,  upon  his  certain  bond  and  mort- 
*gage  mentioned  in  his  bill  of  complaint,  together  with  the  sum 
of  for  his  taxed  costs  in  this  suit,  and  when  and  where 
(such  payment  being  made)  the  said  complainant  shall  deliver 


STRICT   FORECLOSURE.  399 

up  to  the  said  defendant  the  possession  of  the  mortgaged  prem- 
ises, and  cancel  and  discharge  said  mortgage  of  record. 

(Signature  of  master.) 
Dated  ,  18     .  ^ 

Final  decree. 

{Title  of  cause.) 

This  cause  coming  on  to  be  heard  in  the  presence  of 
solicitor  for  and  of  counsel  with  the  complainant,  the  clerk  of 
this  court  having  been  duly  appointed  guardian  ad  litem  of  the 
defendant,  (who  is  an  infant,)  and  having  duly  entered  an 
appearance  for  her;  whereupon,  and  upon  reading  a  report, 
on    file,  made  by  ,  esquire,  one  of  the  masters  of  the 

court,  bearing  date  on  the  day  of  ,  a.  d.  eighteen 

hundred  and  ,  from  all  which  it  appears  that  there  was 

due  to  the  complainant,  (as  the  purchaser  of  the  mortgaged 
premises,  at  a  certain  foreclosure  sale  thereof,  under  a  certain 
decree  made  in  a  certain  suit  in  this  court,  wherein  one 
was  complainant  and  one  and  ,  his  wife,  and  others, 

were  defendants,  the  said  being  the  assignee,  under  two 

certain  mesne  assignments,  of  a  certain  mortgage,  dated 
A.  D.  eighteen  hundred  and  ,  made  by  said  to  one 

,  and  registered  in   Book  of  Mortgages  for  the 

county  of  ,  on  page  ,)  on  the  day  of  the  making  of 

the  said  report,  for  principal  and  interest,  upon  the  said  mort- 
gage, the  net  sum  of  dollars  and  cents,  after  deduct- 
ing the  rents  and  profits  received  by  the  said  complainant,  or  by 
any  person  or  persons  by  his  order  or  for  his  use,  of  and  from 
the  mortgaged  premises  described  in  said  bill ;  and  that  the  said 
master  had  appointed  ,  the  day  of  a.  d. 
eighteen  hundred  and  ,  between  the  hours  of  o'clock 
in  the  forenoon  and  o'clock  in  the  afternoon,  and  his  office 
in  the  ,  on  street,  in  the  city  of  ,  in  said 
county  of  ,  as  the  time  and  place  when  and  where  the 
defendant  should  pay  to  the  complainant  the  said  net  sum  of 

dollars  and  cents,  together  with  his  taxed  costs  of 

this  suit,  and  when  and  where  the  complainant  should  deliver 


400  FORMS   OF   PLEADINGS. 

up  the  possession  of  the  said  mortgaged  premises  to  the  defend- 
ant, and  cancel  and  discharge  his  said  mortgage  of  record,  and 
that  (if  the  said  premises  should  be  sold  under  and  by  the  order 
and  decree  of  this  court)  the  same  should  be  sold  together 
and  not  in  parcels;  and  that  he,  the  said  master,  knew  of  no 
other  special  matter  which  he  deemed  proper,  or  which  appeared 
for  the  benefit  of  the  said  defendant ;  which  report  was,  on  the 
day  of  ,  in  the  year  last  aforesaid,  duly  confirmed 

and  ratified  by  the  said  court;  and  it  also  appearing  that  the 
complainant's  costs  of  suit,  up   to  that   stage  in  the  proceed- 
ings, had  been  duly  taxed  at  ;   whereupon,  and  upon 
reading  a  certain  other  report,  on  file,  made  by  the  said  master, 
bearing  date  on  the  said              day  of  aforesaid,  and  the 
certain  affidavit  of            ,  esquire,  one  of  the  said  solicitors  of 
the  complainant,  attached  to  said  report,  by  which  it  appears 
that  the  said  master  and  the  said  solicitor  (he  being  thereunto 
duly   authorized   and   empowered    by   the   complainant)    duly 
attended  at  the  time  and  place  so  appointed  as  aforesaid,  and 
that  neither  the  said  defendant,  nor  her  said  guardian  ad  litem, 
(although   duly    notified,  as   appears   by   his   acknowledgment 
thereof,  in  writing,)  nor  any  other  person  or  persons  in  his,  her 
or  their  behalf,  appeared  at  the  time  and  place  aforesaid ;  and 
that  neither  the  said  defendant,  nor  her  said  guardian  ad  litem, 
nor  any  other  person  or  persons  in  his,  her  or  their  behalf,  has 
or  have  paid,  or  tendered  or  oiFered  to  pay,  unto  the  said  com- 
plainant, or  his  said  solicitors  or  either  of  them,  the  said  sum  of 
money,  to  wit,                dollars  and               cents,  so  found  and 
reported  to  be  due  to  said  complainant,  upon  his  said  mortgage, 
with  his  said  taxed  costs  of  suit,  either  at  the  time  and  place 
aforesaid,  or  at  any  other  time  and  place :    It  is  thereupon,  on 
this             day  of            ,  A.  d.  eighteen  hundred  and  ,  by 
his  Honor                 ,  Chancellor  of  the  State  of  New  Jersey, 
ordered,  adjudged  and  decreed,  and  the  said  Chancellor  doth, 
by  virtue  of  the  power  and  authority  of  this  court,  hereby  order, 
adjudge  and  decree,  that  the  said  complainant,  as  the  said  pur- 
chaser of  the  said  mortgaged  premises,  at  the  sale  thereof  upon 
the  foreclosure  of  the  said  mortgage,  is  subrogated  to  the  rights 


STRICT   FORECLOSURE.  401 

of  the  said  ,  the  assignee  of  said  mortgage  and  the  com- 

plainant in  such  former  suit ;  and  that  the  conveyance  of  said 
mortgaged  premises,  in  said  foreclosure  suit  and  sale  unto  the 
complainant,  operated  as  a  voluntary  assignment  unto  him,  the 
said  complainant,  of  the  said  mortgage,  and  the  accompanying 
bond,  and  of  all  moneys  due  and  to  grow  due  upon  the  same; 
and  that  the  complainant  is  entitled,  as  such  assignee,  to  the  aid 
and  protection  of  this  court;  and  the  said  Chancellor  doth 
further  order,  adjudge  and  decree,  that  the  said  last-mentioned 
report  of  the  said  master,  and  all  the  matters  and  things 
therein  contained,  do  stand  ratified  and  confirmed,  and  that  the 
said  mortgaged  premises  be  sold  to  raise  and  satisfy  the  said  sum 
of  money  so  due  to  the  said  complainant,  that  is  to  say,  the  said 
sum  of  dollars  and  cents,  together  with  lawful 

interest  thereon,  to  be  computed  from  the  said  day  of 

,  A.  D.  eighteen  hundred  and  — that  being  the  date 

of  the  said  master's  first-mentioned  report — with  the  complain- 
ant's costs  in  this  cause  to  be  taxed,  including  a  counsel  fee  of 

dollars ;  and  that  a  writ  of  fieri  facias  do  issue  for  that 
purpose  out  of  this  court,  directed  to  the  sheriflF  of  the  county  of 

,  commanding  him  to  make  sale,  according  to  law,  of  the 
said  mortgaged  premises,  and  that,  out  of  the  money  arising 
from  such  sale,  he  pay  to  the  complainant,  or  to  his  solicitors, 
his  said  debt,  interest  and  costs ;  and  in  case  more  money  should 
be  raised  by  the  said  sale  than  shall  be  sufficient  to  answer  such 
payment,  that  such  surplus  be  brought  into  this  court,  to  abide 
the  further  order  of  the  court,  unless  otherwise  previously  dis- 
posed of  by  the  order  of  this  court ;  and  that  the  said  sheriff 
make  return  without  delay  of  his  proceedings  by  virtue  of  the 
said  writ. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the  said 
defendant,  ,  stand  absolutely  debarred  and  foreclosed  of 

and  from  all  equity  of  redemption  of,  in  and  to  the  said  mort- 
gaged premises,  when  sold  as  aforesaid  by  virtue  of  this  decree. 

2a 


402 


FOKMS   OF   PLEA.DINGS. 


PARTITION.(a) 

Bill  for  partition. 

In  Chancery  of  New  Jersey. 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey 

Complaining,  shows  unto  your  Honor  your  oratrix, 
of  the  township  of  ,  in   the  county  of 


(a)  Jurisdiction.  Concurrent  jur- 
isdiction is  held  by  courts  of  law  and, 
equity  in  matters  of  partition.  Harts- 
home  V.  Hartshorne,  1  Gr.  Ch.  349 
Partition  is  a  matter  of  right,  and  by 
the  ancient  practice,  both  at  law  and 
in  equity,  actual  partition  was  made, 
however  prejudicial  it  might  be  to 
the  interests  of  the  parties.  Bentley 
V.  Long  Dock  Co.,  1  McCart.  480,  2 
McCart.  501.  To  remedy  this  evil, 
the  statute  of  1816  {Bev.,  "Partition," 
§  16,)  was  enacted,  authorizing  a  sale 
of  the  land  when  the  commissioners 
reported  that  a  partition  could  not  be 
made  without  great  prejudice;  and  by 
the  act  of  1846  {R<iv.,  ''Partition,"  § 
39,)  the  same  power  was  conferred 
upon  the  Court  of  Chancery  upon 
bills  filed  for  partiton  Ibid.  Any 
person  being  a  coparcener,  joint  ten- 
ant or  tenant  in  common  in  any  tract 
of  land  within  this  state,  may  apply 
for  partition.  Rev.,  "Partition,"  §  1. 
As  to  coparceners,  see  4  Kent's  Com. 
*366,  367.  An  executor,  &c.,  with 
power  of  sale  may  also  have  partition. 
Pamph.  L.,  1888,  p.  8 1 .  Such  partition 
may  be  made,  notwithstanding  the 
share  held  by  any  coparcener,  joint 
tenant  or  tenant  in  common,  may  be 
for  a  less  estate  than  a  fee,  or  may  be 
limited  over  after  an  estate  for  life,  or 
any  estate  therein  ;  and  such  partition 
shall  bind  all  tenants  of  such  share, 
in  remainder,  reversion  or  expect- 
ancy, who  shall  be  entitled  only  to 
that  part  of  the  lands  partitioned  as 


and 


may  be  set  off  in  severalty  to  the 
share  upon  which  such  remainder 
or  expectancy  is  limited.  Bev ,  "Parti- 
tion" §  25;  Dianient  v.  Lore,  2  Vr. 
220  Upon  a  bill  for" partition  among 
remaindermen,  the  consent  of  the 
owner  of  the  particular  estate  in 
possession  is  requisite,  and  if  a  sale 
be  ordered,  it  must  be  a  sale  of  the 
whole  estate,  as  well  that  in  posses- 
sion as  that  in  expectancy.  Smith  v. 
Gaines,  12  Stew.  Eq  545.  A  part  of  the 
lands  included  in  the  application  may 
be  divided,  and  the  remainder  sold, 
when  it  appears  that  the  whole  cannot 
be  divided  without  great  prejudice. 
Rev.,  "Partition,"  §  37.  Where  the 
land  may  be  divided,  without  great 
prejudice,  a  sale  will  not  be  ordered. 
Lacey  v.  Bowlby.  April,  1825.  Un- 
der the  statute,  where  a  partition  can- 
not be  made  without  prejudice,  the 
complainant  is  entitled  as  of  course 
to  have  a  sale  made  of  the  premises. 
Bentley  v.  Long  Dock  Co.,  1  McCart. 
480.  There  can  be  no  division  of 
real  estate,  under  the  act  of  Novem- 
ber 11th,  17'89,  where  the  ancestor  has 
given  or  advanced  to  his  children  in 
his  lifetime  any  part  of  his  lands  or 
tenements.  State  v.  Biekey,  3  Hal. 
50.  A  bill  for  partition  will  not  lie 
where  the  title  is  denied,  or  depends 
on  doubtful  facts  or  questions  of  law. 
Dewitt  V.  Ackerman,  2  C  E.  Gr.  215 ; 
Van  Biper  v.  Berdan,  2  Gr.  140. 
Where  a  bill  prays  for  partition,  and 
the    defendants    deny    complainant's 


PARTITION. 


403 


State  of  New  Jersey,  ,  wife  of  ,  that  ,  late 

of  the  township  of  aforesaid,  deceased,  the  father  of  your 

oratrix,  was,  at  the  time  of  his  death,  seized   in  fee   simple 


title,  if  the  title  in  dispute  is  an 
equitable  one,  it  is  the  duty  of  the 
court  to  settle  it.  If  it  is  a  legal  title, 
the  court  may  dismiss  the  bill,  or  may 
retain  the  cause,  and  afford  the  party 
an  opportunity  of  settling  his  title  at 
law.  Lucas  v.  King,  2  S  ock.  277 ; 
Manners  v.  Manners,  1  Or.  Ch.  384; 
Obert  V.  Oberi,  1  Hal.  Ch.  397;  2 
Stock.  98;  Hay  v.  Estell,  3  C.  E.  Gr. 
251 ;  Riverview  Cemetery  Co  v.  Turner, 
9  C.  E.  Gr.  18  ;  Slockbower  v.  Kanouse, 
5  Dick.  Ch.  Rep.  481.  The  mere  denial 
of  the  complainant's  title  is  no  obstacle 
to  the  proceedings.  The  defendant 
must  answer  the  bill,  and  if  he  sets  up 
a  title  adverse  to  the  complainant,  or 
disputes  the  complainant's  title,  he 
must  discover  his  own.  Lucas  v.  King, 
supra. 

In  a  suit  for  partition  in  chancery, 
where  a  defendant  sets  up  an  equitable 
tiile  to  the  whole  estate  in  the  prem- 
ises, or  impeaches  the  complainant's 
title  on  equitable  grounds,  the  court 
will  not  suspend  the  suit  until  the 
title  be  settled,  but  will  pass  upon 
such  title  and  settle  all  disputes  con- 
cerning it  in  the  partition  suit,  and 
grant  relief  accordingly.  Read  v. 
Huff,  13  Stew.  Eq.  229. 

In  equity  there  is  no  necessity  that 
a  partition  should  be  so  made  as  to 
give  each  party  a  share  in  every  part 
of  the  property.  Each  party  must 
have  his  share  in  value,  which  is  all 
that  is  required.  Brookfield  v.  Wil- 
liams, 1  Gr.  Ch.  341.  Equal  partition 
of  each  parcel  among  all  the  owners 
is  not  required.  A  partition  so  made, 
without  necessity,  and  practically  de- 
structive of  the  value  of  the  parcel 
divided,  will  be  set  aside.  Haulen- 
ieck  V.   Cronkright,  11   C.  E.  Gr.  159. 


Parties.  A  suit  in  the  Court  of 
Chancery  for  partition  must  be  insti- 
tuted by  bill.  By  the  English  prac- 
tice, a  bill  for  partition  might  be  filed 
by  an  infant,  through  his  next  friend. 
Lord  Brook  v.  Lord  Htrtford,  2  P. 
Wms.  519.  In  New  York,  a  lunatic, 
together  with  his  committee,  could 
bring  his  bill  for  partition  of  lands. 
Gorham  v.  Gorham,  3  Barb.  Ch.  24; 
see  also  Story's  Eq.  PL,  ^  64;  Willis' 
Eq.  PL,  p.  4.  And  such  is  the  estab- 
lished practice  in  New  Jersey. 

The  complainant  must  take  out  and 
serve  a  subpcena,  as  in  ordinary  suits, 
directed  to  all  parties  (by  name)  who 
are  known,  whether  their  interests  are 
known  or  are  uncertain,  contingent 
or  unknown.  If  any  parties  are  un- 
known, or  if  either  of  the  known 
parties,  whether  minors  or  adults,  re- 
side out  of  this  state,  or  conceal  them- 
selves, or  cannot  be  found  therein, 
and  such  facts  are  shown  to  the  court 
by  affidavit,  such  unknown  or  absent 
parties  may  be  served  by  publication 
and  notice,  in  the  manner  provided  by 
law.  See  ante,  "Absent  defendants," 
page  28.  Where  real  estate  is  held  by 
coparceners,  joint  tenants  or  tenants  in 
common,  any  of  whom  shall  be  pre- 
sumed to  be  dead,  pursuant  to  Rev., 
"Death,"  ?  4,  and  it  shall  not  be 
known  whfether  such  owner  is  living 
or  not,  or  whether,  if  dead,  he  or  she 
has  devised  his  or  her  interest  in  such 
real  estate,  or  who  are  his  or  her  heirs- 
at-law,  the  other  coparceners,  joint 
tenants  or  tenants  in  common,  or  any 
one  of  them,  may  commence  a  suit  by 
bill  for  partition  in  the  Court  of  Chan- 
cery, in  the  same  manner  as  if  all  the 
owners  of  such  real  estate  were  known, 
making  parties  thereto  as  well   such 


404 


FOEMS   OF   PLEADINGS. 


of  a  certain   farm  or   tract  of  land,  situate  in   the   township 


of 


in  the  county  of 


bounded  and  described 


as  follows,  to  wit,  {here  insert  description,)  and  being  so  seized 


owner  so  presumed  to  be  dead,  by  his 
right  name,  as  his  heirs-at-law  and 
devisees,  by  the  right  name  of  such  of 
them  (if  any  there  be)  as  shall  be 
known  to  be  his  or  her  lieirs-at-Ia\v,  if 
such  owner  were  actually  dead,  and 
by  the  name  of  the  unknown  heirs-at- 
law  and  devisees  of  such  owner,  by 
the  service  of  a  subpoena  to  answer,  as 
in  other  suits  in  the  said  court,  or  by 
a  publication,  according  to  the  law  and 
practice  of  said  court  in  case  of  absent 
defendants,  and  by  such  further  pub- 
lication as  is  provided  for  by  Rev., 
"Partition"  §  31,  and  thereupon  such 
proceedings  shall  be  had  as  are 
directed  by  the  act  to  which  this  is  a 
supplement ;  and  the  Chancellor  shall 
have  the  power  to  make  such  decree 
against  the  said  owner  so  presumed  to 
be  dead  and  against  liis  heirs-at-law, 
known  or  unknown,  and  his  unknown 
devisees,  as  if  they  were  known  to  the 
court,  and  their  respective  interests  in 
such  real  estate  determined  ;  and  shall 
also  have  all  such  power  and  author- 
ity, in  respect  to  the  cases  herein  pro- 
vided for,  as  is  granted  to  him  by  the 
act  to  which  this  is  a  supplement  in 
respect  to  the  cases  therein  provided 
for ;  and  any  deed  or  deeds  for  such 
real  estate  made  pursuant  to  the  de- 
cree and  order  of  the  Chancellor  in 
any  such  cases,  shall  convey  all  right, 
title  and  estate  of  all  the  owners  of 
such  real  estate,  ascertained  and  un- 
ascertained, as  completely  and  effectu- 
ally as  if  all  the  owners  were  by  name 
made  parties  to  said  bill,  and  as  such 
brought  before  the  court.  Ber.,  "Par- 
tition," p.  1375.  Encumbrances  upon 
the  property  constitute  no  objection 
to  a  partition.    As  regards  real  estate. 


it  is  not  necessary  that  the  encum- 
brancer should  be  a  party  to  the 
suit  for  partition.  His  rights  are  not 
affected  by  it.  Loic  v.  Holmes,  2  C.  E. 
Or.  150 ;  Spcer  v.  Speer,  1  McCart. 
240.  If,  by  the  defendant's  answer, 
or  otherwise,  in  the  progress  of  the 
cause,  the  existence  of  an  encum- 
brance shall  be  established,  the  en- 
cumbrancer may  be  made  a  party,  and 
his  rights  protected.  Low  v.  Holmes, 
ut  sup.  Neither  the  administrators 
nor  the  creditors  of  an  intestate  have 
any  such  interest  in  the  land  as 
renders  them  necessary  parties.  Speer 
V.  Speer,  ut  sup.  A  partition  will  not 
affect  any  rights,  legal  or  equitable, 
which  the  creditor  may  have.  If  the 
land  is  liable  for  debts  before  the  par- 
tition, it  will  remain  so  afterwards. 
Should  the  lands  be  found  incapable 
of  partition,  and  a  decree  for  sale  be- 
come necessary,  it  may  then  become 
a  question  how  the  rights  of  creditors 
should  be  protected.  The  court  is 
inclined,  on  bills  for  partition,  to 
protect  the  interest  of  all  parties  hav- 
ing legal  or  equitable  claims  upon 
the  lands  Ibid.  If  there  be,  at 
the  time  of  making  any  partition,  a 
lien  upon  the  undivided  estate  of  any 
owner  by  judgment,  decree,  mortgage 
or  otherwise,  such  lien  shall  thereafter 
be  a  lien  only  on  the  share  allotted  to 
such  owner ;  and  such  share  shall  be 
first  charged  with  its  proportion  of 
the  costs  of  the  partition,  in  preference 
to  any  such  lien.  Bev.,  "Partition," 
I  36 ;  Kline  v.  McGuckin,  9  C.  E.  Or. 
411.  A  subsequent  statute  has  altered 
the  law  on  this  subject  and  has  author- 
ized the  court  to  decree  a  sale  which 
will  give  the  purchaser  a  perfect  title 


PARTITION. 


405 


thereof,  he,  on  or  about  the  day  of  ,  eighteen 

hundred  and  ,  died  intestate,  leaving  ,  his  widow, 

and  also  leaving  tXjour  oratrix,)  and  and  , 

his  only  children  and  heirs-at-law ;  and  that  by  his  death,  intes- 
tate as  aforesaid,  the  said  farm  and  premises  descended  to  his 


discharged  from  all  liens  and  encum- 
brances on  an  undivided  share.  Rev. 
Sup.,  "Partition,"  p.  783. 

If  partition  can  be  and  is  made,  ihe 
dowress  is  not  a   necessary  party  to 
the  suit.     Uaulenbeck  v.  Croiikright,  8 
C.  E.  Gr.  407.     But  it  is  provided  by 
statute,  that  in  proceedings  for  parti- 
tion of  lands,  if  it  shall  appear  to  the 
court  in  which  such  proceedings  are 
pending,  that  any  person  is  entitled  to 
an  estate  in  dower,  or  by  the  curtesy 
in  the  whole  or  any  part  or  share  of 
the  premises,  it  shall  be  lawful  for  the 
court  at  the  time  of  making  the  order 
for  the  sale  of  such  premises,  to  con- 
sider and   determine,  under   all  the 
circumstances  of  the  case,  having  re- 
gard to  the  interests  of  all  persons  in- 
terested, whether  such  right  or  estate 
in  dower,  or  by  the  curtesy,  should  be 
excepted  from  such  sale,  or  whether 
the  same  should  be  sold,  and  to  order 
and  decree  accordingly ;  the  purchaser 
under    such    decree,   his    heirs    and 
assigns,  will  hold  the  premises  free  and 
discharged  from  all  claims  by  virtue 
of   such    dower    or    curtesy.      Rev., 
"Sale   of  Lands,"    §    18.     Therefore, 
whenever  there  is  a  widow  entitled  to 
dower,  or  a  tenant  by  curtesy,  it  is 
advisable    to    make     them     parties, 
especially  if  a  sale  be  necessary.    And 
the  same  remark  may  be  applied  to 
married  women  having  mere  inchoate 
rights  of  dower.    It  was  held  in  New 
York  that  in  proceedings  in  partition, 
the  inchoate  rights  of  dower  of  femes 
covert,  whether  infants  or  adults,  in  the 
undivided  shares  of  their  husbands  in 
the  land,  the  wives  being  parties  to 


the  proceedings,  were  divested  by  a 
sale  under  the  decree  of  the  court,  so 
as  to  protect  the  purchasers  against 
the  dower  of  such  femes  covert,  should 
they  survive  their  husbands.    Jackson 
V.  Edwards,  7  Paige  386.     This  prac- 
tice is  now  regulated  by  statute.    Rev. 
Sup.,  "Partition,''  §  13.     And  it  has 
been  held  that  a  railroad  corporation 
is  not  a  necessary  or  proper  party  to 
partition  proceedings,  in  consequence 
merely  of  having  laid  out  and   con- 
structed its  road  over  lands  owned  by 
tenants  in  common.    Weston  v.  Foster, 
7  Mete.  297.    A  party  who  has  merely 
a  future  contingent  interest  in  an  un- 
divided share  of  real  estate,  cannot 
sustain  a  suit  for  a  partition  of  the 
property.      Striker  v.   Mott,   2   Paige 
387.   A  mere  reversioner,  without  the 
concurrence  of  any  of  the  owners  of 
the  present  intercbt  in  the  premises, 
has  no  right  to  file  a  bill  for  partition. 
But  a  reversioner  is  a  necessary  party, 
where  a  bill  is  filed  by  a  person  who 
is  owner  of  an  undivided  share  of  the 
reversion  as  well  as  of  an  undivided 
share  of  the  present  interest  in  the 
property.     The  reversioner  is  also  a 
necessary   party,   where   the    suit   is 
brought  by  an  owner  of  the  undivided 
share  of  the  premises  for  life,  or  of 
any   other   particular   estate    in   the 
same,  and  some  of  the  other  parties 
own  the  residue  of  the  premises  in  fee. 
Ibid.     As  to  whether  a  complainant 
in  a  partition  suit  is  bound  to  take 
notice  of  the  marriage  of  a  male  de- 
fendant   pendente  lite,   and    practice 
thereon,   see  Jackson   v.  Edwards,  7 
Paige  386. 


406 


FORMS   OF   PLEADINGS. 


said  children,  who  became  seized  thereof  as  tenants  in  common 
in  fee  simple,  subject  to  the  right  of  dower  of  his  said  widow  in 
the  same. 

And  your  oratrix  further  shows  unto  your  Honor,  that  after 

the  death  of  the  said  ,  and  on  or  about  the  day  of 

,  eighteen  hundred  and  ,  your  oratrix  was  married 

to  her  present  husband ;  and  that  she  remained  upon  the  said 

premises  with  her  mother  and  family  until  the  day  of 

,  eighteen  hundred  and 

And  your  oratrix  further  shows,  that  the  defendant,  ,  is 

a  married  man,  and  that  his  wife's  name  is  ,  and  that  she 

claims  an  inchoate  right  of  dower  in  the  share  of  said  lands  of 
which  her  husband  is  seized.(a) 

And  your  oratrix  further  shows  unto  your  Honor,  that  the 
said  and  are  infants  under  the  age  of  twenty-one 

years  ;  and  that  they  reside  with  their  mother,  the  said  , 

in  part  of  the  dwelling-house  upon  the  said  farm. 


(a)  All  inchoate  rights  of  dower  in 
lands  ordered  by  the  Chancellor  to  be 
sold  therein,  may  be  sold  by  order  of 
the  court,  and  in  such  case,  the  court 
shall  direct  one-third  of  the  net  pro- 
ceeds of  the  sale  of  the  share  which  is 
subject  to  such  dower  to  be  invested, 
and  the  income  thereof,  during  the 
lifetime  of  the  tenant  in  fee  of  such 
share,  to  be  paid  to  such  tenant,  or  to 
the  lienors  upon  such  share;  and 
upon  the  death  of  such  tenant,  said 
income  shall  be  paid  to  the  tenant  in 
dower  during  her  life,  and  upon  her 
death,  the  court  shall  order  the  prin- 
cipal of  said  fund  to  be  paid  to  the 
heirs-at-law  of  the  tenant  in  fee  or  to 
parties  holding  liens  upon  said  share 
at  the  time  of  the  sale  thereof  and  re- 
maining unsatisfied  at  the  death  of 
the  tenant  in  dower,  as  equity  may 
require.  Bev.  Sup.,  "Partition,"  |  14. 
Provided,  that  if  the  person  holding 
such  inchoate  dower  shall  signify  her 
consent  thereto  in  writing,  acknowl- 
edged as  deeds  are  required  to  be 
acknowledged  by  married  women,  the 


proceeds  of  sale  of  such  share  as  is 
subject  to  such  dower  shall  be  paid 
over  as  though  no  such  estate  existed. 
Pamph.  L.,  1887,  p.  139. 

The  Chancellor  may  direct  release 
or  relinquishment  of  inchoate  right 
of  dower  of  a  person  mentally  inca- 
pacitated, and  direct  an  investment  of 
the  proceeds  of  sale,  on  a  petition  for 
the  purpose.  ^eeRev.  Sup.,  "-Dower,"  §§ 
2, 3 ;  also  Pam-ph.  L.,  1892,  Chap.  CXV. 

Instead  of  investing  one-third  of 
the  net  proceeds  of  sale,  it  shall 
be  lawful  for  the  ofiicer  making  the 
sale,  on  executing  to  him  a  full 
release  and  discharge,  duly  acknowl- 
edged according  to  law,  from  the 
tenant  in  fee  and  his  wife  entitled  to 
such  inchoate  right  of  dower,  to  pay 
to  them  the  one-third  of  said  net 
proceeds.  If  the  share  of  the  tenant 
in  fee  has  been  sold  by  judgment  or 
otherwise,  or  become  subject  to  any 
valid  lien,  then  such  payment  shall 
not  be  made  without  aH  parties  in 
interest  shall  join  in  such  release  and 
discharge.     Pamph.  L.,  1887,  p.  155. 


PARTITION.  407 

And  your  oratrix  further  shows  unto  your  Honor,  that  the 
defendant,  ,  is  in  the  possession  of  the  whole  of  the  said 

farm   and  premises,  (except  that   part  of  the   dwelling-house 
occupied  by  the  said  and  her  other  children  as  aforesaid,) 

and  that  the  said  claims  to  be  entitled  to  the  exclusive 

possession  and  enjoyment  of  the  said  premises,  under  and  by 
virtue  of  a  pretended  lease  from  ,  the  administrator  of  the 

personal  estate  of  the  said  ,  deceased. 

And  your  oratrix  further  shows  unto  your  Honor,  that  in  and 
by  the  said  pretended  lease  made  between  the  said  ,  admin- 

istrator, &c.,  of  ,  deceased,  of  the  one  part,  and  the  said 

,  of  the  other  part,  the  said  administrator  pretended  to 
demise  and  lease  the  said  premises  to  the  said  for  the  term 

of  one  year,  commencing  on  the  day  of  ,  eighteen 

hundred  and  ,  at  the  yearly  rent  of  dollars. 

And  your  oratrix  further  shows,  that  in  and  by  the  said  pre- 
tended lease,  it  was,  among  other  things,  provided  that  the  said 
should  pay  the  tax  on  said  premises,  and  also  should 
build,  or  cause  to  be  built,  a  wagon  or  carriage- house  upon  the 
said  premises  during  the  summer  or  fall  of  the  present  year, 
the  estate  finding  the  materials  and  paying  for  the  work  ;  and 
that  the  said  is  now  commencing  to  procure  materials  for 

the  erection  of  the  said  carriage  house,  and  threatens  to  expend 
the  whole  or  a  large  part  of  the  rent  reserved  by  the  said  pre- 
tended lease  in  the  erection  and  construction  thereof,  insisting 
that,  by  the  terms  of  the  said  pretended  lease,  he  has  right  and 
authority  so  to  do,  and  to  offset  the  cost  of  said  building  against 
the  rent  of  the  said  premises,  or  against  any  claim  for  the  use 
and  occupation  thereof.  {If  there  be  any  liens  on  the  undivided 
interest  or  estate  of  any  of  the  parties  by  mortgage,  judgment,  de- 
cree, divise  or  otherwise,  they  should  be  set  out  in  the  same  form 
in  which  encumbrances  of  defendants  are  stated  in  a  foreclosure 
bill.){a) 

And  your  oratrix  further  shows  unto  your  Honor,  that  she 

is  seized  of  and  entitled  to  the  one  equal  undivided  ninth  part 

of  the  said  premises,  subject  to  the  right  of  dower  of  the  said 

in  the  same ;  and  that  the  said  and  are 

(a)  Rev.  Sup.,  "Partition,"  ^§  1-12. 


408  FORMS   OF   PLEADINGS. 

each  severally  seized  of  and  entitled  to  one  equal  ninth  part  of 
the  said  premises,  subject   to  the  right  of  dower  of  the  said 
therein  as  aforesaid ;  and  that  ,  the  wife  of  the 

said  ,  claims  an  inchoate  right  of  dower  in  one  equal 

ninth  part  of  the  said  premises  to  which  he  is  entitled  as  afore- 
said ;  and  that  the  undivided  interest  or  estate  of  the  defendant, 
,  in  said  lands  is  subject  to  a  mortgage  to  secure  the  sum 
of  ,  or  some  other  sum,  made  by  the  said  to  the  de- 

fendant, ,  (or  stating  the  lien,  as  the  ease  may  be,  and  so 

as  to  any  liens  or  encumbrances  against  undivided  interests.) 

And  your  oratrix  further  shows  unto  your  Honor,  that  your 
oratrix  is  entitled  to  receive  from  the  said  one  equal  ninth 

part  of  such  rent  or  compensation  as  may  be  due  or  become  due 
from  him  for  the  use  and  occupation  of  the  said  farm,  or  to  the 
one  equal  ninth  part  of  the  rents,  issues  and  profits  thereof, 
while  in  the  possession  and  occupation  of  the  said 

And  your  oratrix  further  shows,  that  the  erection  of  a  wagon 
or  carriage-house  upon  the  said  premises  by  the  said  ,  if 

done  at  the  expense  of  the  estate  of  the  said  ,  or  at  the 

expense  of  the  parties  interested  in  said  premises,  would  deprive 
your  oratrix,  and  the  infant  children  of  the  said  ,  deceased, 

of  all  the  rents  and  profits  of  the  said  farm  for  the  current  year, 
without  any  corresponding  benefit  received  therefor,  as  the  value 
of  said  premises,  if  sold  at  public  sale,  would  be  but  little  if  at 
all  increased  by  the  erection  of  the  said  building. 

And  your  oratrix  further  shows,  that  the  said  is  con- 

siderably in  debt,  and  possessed  of  but  little  personal  and  no 
real  estate  except  his  share  of  the  said  farm. 

And  your  oratrix  further  shows,  that  the  said  had  no 

authority  whatever,  either  as  administrator  of  the  said 
or  otherwise,  to  lease  or  demise  the  said  premises;  and  that  he  is 
not  entitled,  as  such  administrator,  qx  in  any  other  capacity,  to 
receive  the  rents,  issues  and  profits  thereof;  and  that  the  said 
lease  hereinbefore  mentioned  is  void  as  against  your  oratrix  and 
the  other  heirs  of  the  said  ,  deceased. 

And  your  oratrix  further  shows,  that  she  is  desirous  that  a 
partition  or  division  of  the  said  tract  of  land  and  premises 
should  be  made  among  your  oratrix  and  the  several  parties 
seized  of  and  entitled  thereto,  according  to  their  several  and 


PARTITION.  409 

respective  rights,  estates  and  interests  therein,  or,  in  case  (as  your 
orators  believe  and  aver  the  fact  to  be)  that  the  said  tract  of 
land  and  premises  cannot  be  divided  among  the  owners  thereof 
without  great  prejudice  to  their  interests,  then  that  the  same  may- 
be sold,  and  the  proceeds  thereof  divided  among  your  oratrix 
and  the  other  parties  entitled  thereto  as  aforesaid,  according  to 
their  respective  rights  and  interests. 

But  your  oratrix  is  advised  that  no  valid  or  eflPectual  partition, 
division  or  sale  of  the  said  premises  can  be  effected  without  the 
aid  and  interposition  of  some  competent  court;  and  that  this 
honorable  court  has  full  and  complete  jurisdiction  in  the  premises. 

In  consideration  whereof,  and  to  the  end  that  the  said 
(defendants)  may,  upon  their  several  and  respective  oaths  and 
affirmations,  full,  true,  direct  and  perfect  answer  make  to  all  and 
singular  the  charges  and  matters  aforesaid,  as  fully  and  particu- 
larly as  if  the  same  were  here  again  repeated,  and  they  thereunto 
particularly  interrogated ;  and  that  a  fair  partition  and  division 
of  the  above-described  premises  may  be  made,  according  to  the 
course  and  practice  of  this  court,  if  the  same  be  practicable  and 
consistent  with  the  rights  of  all  the  parties  interested  therein, 
among  your  oratrix  and  other  persons  entitled  to  shares  of  the 
said  premises,  according  to  their  respective  rights  and  interests 
therein ;  and  that  the  liens,  if  any,  on  the  undivided  estate  or 
interest  of  any  of  the  parties  hereto  be  decreed  to  be  a  charge 
only  on  the  share  assigned  to  such  party,  such  share  to  be  first 
charged  with  its  just  proportion  of  the  costs  of  these  proceedings 
in  preference  to  any  such  lien ;  and  in  case  such  partition  and 
division  in  fact  of  the  said  premises  shall  be  found  to  be  im- 
practicable, or  if  it  should  appear  that  the  same  cannot  be  made 
without  great  prejudice  to  the  owners  of  the  said  premises,  then 
that  the  said  tract  of  land  and  premises  may  be  decreed  by  this 
honorable  court  to  be  sold,  including  the  inchoate  right  of  dower 
of  the  defendant,  ,  and  the  proceeds  thereof,  after  paying 

the  costs  and  charges  of  this  suit,  divided  among  your  oratrix 
and  the  several  parties  interested  therein,  according  to  their 
respective  rights,  shares  and  interests;  and  that  the  portion  of 
the  moneys  arising  from  said  sale  of  the  estate,  share  or  interest 
of  any  party  against  whom  there  are  existing  any  liens  or  encum- 


410  FORMS   OF   PLEADINGS. 

brances  held  by  any  creditor  of  such  party,  who  is  a  party 
defendant  to  this  suit,  be  brought  into  this  court  by  the  master 
or  commissioner,  as  the  case  may  be,  who  shall  make  sale  of  said 
premises,  after  deducting  the  costs,  charges  and  expenses  to  which 
it  shall  be  liable,  to  the  end  that  the  Chancellor  may  make  such 
order  therefor  as  the  circumstances  of  the  case  may  require;  and 
that  in  the  meantime,  one  or  more  proper  person  or  persons  may 
be  appointed  to  receive  the  rents,  issues  and  profits  of  the  said 
farm  and  premises,  for  the  benefit  of  your  oratrix  and  all  other 
persons  interested  therein ;  and  that  such  rents  and  profits  may 
be  paid  and  divided  among  your  oratrix  and  all  other  parties 
entitled  thereto,  according  to  their  respective  shares  and  interests 
in  the  same;  and  that  an  account  may  be  taken  of  the  rents, 
issues  and  profits  of  the  said  premises  while  in  the  possession 
and  occupation  of  the  said  ,  or  that  the  sum  of 

dollars,  specified  in  said  lease,  may  be  decreed  to  be  the  amount 
of  said  rents  and  profits  ;  and  that  the  same  may  be  paid  to  such 
person  or  persons  as  may  be  appointed  by  this  honorable  court 
as  aforesaid  to  receive  the  same;  and  in  case  the  said 
shall  not  pay  the  said  rents,  issues  and  profits,  according  to  the 
order  and  decree  of  this  court,  then  that  the  same  may  be 
deducted  from  his  share  and  portion  of  the  proceeds  of  sale  of 
the  said  premises,  for  the  benefit  of  your  oratrix  and  all  other 
persons  interested  therein ;  and  that  the  said  pretended  lease  now 
in  the  possession  of  the  said  or  of  the  said  ,  may  be 

decreed  to  be  null  and  void ;  and  that  the  said  may  be 

restrained  from  paying  the  rent  reserved  by  the  said  lease,  or 
the  rents,  issues  and  profits  of  the  said  premises,  to  the  said 
,  or  to  any  other  person  or  persons  whomsoever,  except 
by  the  order  of  this  honorable  court;  and  that  he  may  be 
further  restrained  from  erecting  a  wagon  or  carriage-house  upon 
the  said  premises,  or  procuring  materials  therefor  at  the  expense 
of  the  estate,  or  of  the  heirs  of  the  said  ,  deceased ;  and 

that  your  oratrix  may  have  such  further  or  other  relief  as  the 
nature  and  circumstances  of  the  case  may  require,  and  as  shall 
be  agreeable  to  equity. 

May  it  please  your  Honor  to  grant  unto  your  oratrix  a  writ 
of  injunction,  issuing  out  of  and  under  the  seal  of  this  honor- 
able court,  to  be  directed  to  the  said  ,  enjoining  and  restrain- 


PARTITION.  411 

ing  him  from  paying  the  rent  reserved  by  the  said  pretended 
lease,  or  the  rents,  issues  and  profits  of  the  said  farm  and  prem- 
ises, or  any  part  thereof,  to  the  said  ,  or  to  any  other  per- 
son or  persons,  except  by  the  order  and  decree  of  this  honorable 
court ;  and  also  restraining  him  from  erecting  a  wagon  or  car- 
riage-house upon  the  said  premises,  or  procuring  materials 
therefor  pursuant  to  the  terms  of  said  pretended  lease,  or  other- 
wise, at  the  expense  of  the  estate,  or  of  the  heirs  of  the  said 
,  deceased ;  and  also  the  state's  writ  of  subpoena,  to  be 
directed  to  the  said  [defendants,)  commanding  them,  and  each 
of  them,  at  a  certain  day,  and  under  a  certain  penalty  therein 
to  be  expressed,  personally  to  be  and  appear  before  your  Honor 
in  this  honorable  court,  then  and  there  to  answer  the  premises, 
and  to  stand  to  and  abide  and  perform  such  decree  therein  as  to 
your  Honor  shall  seem  meet. 

And  your  oratrix  will  ever  pray,  &c. 

Affidavit  to  procure  injunction.     State  of  New  Jersey, 
ss. —  ,  of  the  township  of  ,  in  the  county  of  , 

and  State  of  New  Jersey,  the  complainant  in  the  above  bill, 
being  duly  sworn  according  to  law,  upon  her  oath  says — that 
the  matters  and  things  set  forth  in  the  foregoing  bill  are  true ; 
and  that  the  said  has,  to  the  personal  knowledge  of  this 

deponent,  within  a  few  days  last  past,  commenced  procuring 
materials  and  lumber  for  the  building  of  a  wagon  or  carriage- 
house  upon  the  premises  mentioned  in  said  bill ;  and  that  said 
claims  to  be  entitled  to  build  the  same  at  the  expense  of 
the  estate  of  ,  deceased,  or  at  the  expense  of  the  heirs  of 

the  said  ,  deceased,  pursuant  to  the  terms  of  a  pretended 

lease  of  the  said  premises  mentioned  in  said  bill. 

{Signature.) 
Sworn,  &c. 

Notice  of  pendency  of  suit.(a) 

Notice   is  hereby  given,  pursuant  to  the  directions   of  the 
statute  in  such  case  made  and  provided,  to  all  whom  it  doth  or 

(a)    Rev.,   "Chancery"    §    57,   and      Sup.,  "Chancery,"  I  10;    Pamph.  L., 
notes;  Rev.  Sup.,  "Chancei-y,"  ^  4.    As       1888,  p.  427. 
to  discharge  of  lis  pendens,  see  Rev. 


412  FOEMS   OF   PLEADIKG8. 

may  concerD,  of  the  pendency  of  a  suit  in  the  Court  of  Chancery 
of  New  Jersey,  and  that  the  title  of  said  suit  is  as  follows : 

In  Chancery  of  New  Jersey. 
Between  ^ 

complainant,     ! 
and  [ 

defendants.      j 
And  that  the  general  object  of  said  suit  is  to  obtain  a  parti- 
tion and  division  of  all  and  singular  the  lands,  tenements  and 
hereditaments  whereof  ,  late  of  ,  deceased,  died 

seized,  between  and  among  the  above-named  parties  respectively, 
as  his  heirs-at-law  or  as  otherwise,  being  tenants  in  common  of 
the  gaid  lands,  &c.,  or  any  part  or  parts  thereof,  according  to 
the  respective  rights  of  the  parties  interested  therein  ;  and  if  it 
shall  appear  that  a  partition  thereof  cannot  be  made  without 
great  prejudice  to  the  owners  thereof,  then  that  the  same  may  be 
sold,  and  that  the  moneys  to  arise  from  such  sale  [after  the  pay- 
ment and  satisfaction  of  certain  specific  liens  and  encumbrances 
in  the  bill  of  complaint  in  said  cause  mentioned]  may  be  dis- 
tributed and  disposed  of  according  to  law ;  and  that  a  descrip- 
tion of  the  said  lands,  &c.,  to  be  affected  by  said  suit  in  chan- 
cery is  as  follows  {describe  lands.) 

{Signature  of  complainant  or  solicitor.) 
Dated 

Interlocutory  decree  in  partition  suit.(«) 

( Title  of  cause.) 
This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  that  process  of  subpoena 

(a)  A  bill  for  partition  may  be  taken  tive  parties  in  the  premises,  and  to 
as  confessed  in  the  same  manner  as  ascertain  and  report  whether,  in  his 
other  bills  in  chancery.  A  reference  opinion,  a  partition  of  the  land  or 
to  a  master  is  authorized  only  in  case  real  estate  can  be  made  without  great 
of  a  decree  pro  covfesso.  Beniley  v.  prejudice  to  the  owners  of  the  same; 
Long  Dock  Co.,  1  McCart.  487.  Where  which  report  shall  be  made  to  the 
a  bill  is  filed  for  partition,  and  a  de-  Chancellor,  at  the  time  and  place 
cree  pro  confesso  is  taken,  there  shall  named  in  the  order  of  reference,  at 
be  a  reference  to  a  special  master  to  which  time  and  place  any  party  inter- 
report  as  to  the  rights  of  the  respec-  ested  may  appear  and  make  objections 


PARTITION. 


413 


for  the  defendants  to  appear  and  answer  the  complainant's  bill 
has  been  duly  issued,  and  returned  served  on  all  the  defendants 
therein  named ;  but  that  the  defendants  and  ,  his 

wife,  and  have  not,  nor  have  any  of  them,  appeared, 

pleaded,  answered  or  demurred  to  the  complainant's  bill  of  com- 
plaint within  the  time  limited  by  law  and  the  rules  of  this  court, 
or  at  any  other  time,  but  that  they  have  wholly  failed  and 
neglected  so  to  do. 

AndJt  further  appearing  that  the  defendants  and  , 

infants  under  the  age  of  twenty-one  years,  have,  by  ,  their 

guardian  ad  litem,  filed  their  answer,  praying  that  their  interest 
in  the  premises  mentioned  in  the  complainant's  bill  may  be 
protected : 

It  is  thereupon,  on  this  day  of  ,  eighteen  hundred 

and  ,  ordered,  adjudged  and  decreed,  that  the  complain- 

ant's bill  be  and  the  same  is  hereby  taken  as  confessed  against 
the  defendant  and  ,  his  wife,  and  ; 


to  the  report ;  but  no  exceptions  in 
writing  shall  be  filed  to  the  same.  If 
the  master  report  that  a  partition  can- 
not be  made  without  great  prejudice 
to  the  owners  of  the  property,  and  the 
report  is  confirmed,  then  an  order 
shall  be  made  directing  a  sale  by  a 
master.  If  the  master  report  that,  in 
his  opinion,  a  partition  can  be  made 
without  prejudice,  &c.,  then  the  Chan- 
cellor shall  appoint  three  persons  as 
commissioners,  to  make  partition 
according  to  law ;  and  all  further  pro- 
ceedings, as  to  such  sale  or  partition, 
shall  be  according  to  the  practice  of 
the  court  in  like  cases  heretofore.  In 
cases  of  sale,  the  master  shall  be 
allowed  the  same  fees  that  by  law  are 
allowed  a  sheriff  on  sale  by  execu- 
tion. Rule  166.  Where  an  answering 
defendant  to  a  bill  for  partition  makes 
no  objection  to  an  order  of  reference, 
and  takes  part  in  the  proceedings 
thereunder,  he  waives  the  irregularity. 
It  was  held  in  this  case,  that  on  the 
day  noticed  for  a  motion  to  confirm 


the  master's  report,  he  could  be  heard 
on  the  merits  of  the  report  on  excep- 
tions thereto.  Wain  v.  Meirs,  12  C. 
E.  Gr.  77.  Where  a  defendant  ap- 
peared on  behalf  of  himself  and  his 
wife,  and  filed  a  written  consent  for 
both  to  the  reference- — held,  that  he 
could  not  afterwards  object  to  the 
order  of  reference  on  the  ground  that 
he  had  filed  an  answer,  and  therefore 
the  order  was  irregular.  Smith  v. 
Frenche,  1  Steiv.  Eq.  115.  For  the 
practice  in  case  of  answer  which  does 
not  appear  to  set  up  any  defence,  or  to 
present  any  question  except  such  as  is 
the  appropriate  subject  of  a  reference 
to  a  master,  see  rule  29.  If  the  suit  has 
abated,  by  the  death  of  some  of  the 
parties,  and  their  interests  have  vested 
in  other  persons  who  are  not  parties  to 
the  suit,  but  who  are  subsequently 
brought  before  the  court  as  parties, 
there  must  be  a  new  reference  as  to 
the  rights  of  the  new  parties,  before  a 
decree  for  sale  can  be  made.  Reynolds 
V.  Reynolds,  5  Paige  161. 


414  FORMS  OF   PLEADINGS. 

and  it  is  further  ordered,  that  it  be  referred  to  ,  one  of  the 

special  masters  of  this  court,  to  ascertain  and  report  the  right, 
title  and  interest  of  the  respective  parties  in  the  premises  men- 
tioned and  described  in  the  bill  of  complaint  in  this  cause ;  and 
also  whether,  in  his  opinion,  the  said  lands  and  real  estate  are 
so  situate  that  a  partition  thereof  can  be  made  without  great 
prejudice  to  the  owners  thereof;  and  that  he  state  the  facts  upon 
which  his  opinion  is  founded ;  and  in  case  such  partition  cannot 
be  made,  then  to  ascertain  and  report  whether,  in  case  of  a  sale 
of  said  premises,  under  all  the  circumstances  of  the  case,  having 
regard  to  the  interests  of  all  the  parties,  the  estate  and  interest 
of  ,  (widow  of  ,  deceased,)  if  any  she  have,  as  tenant 

in  dower  in  the  said  premises,  ought  to  be  excepted  from  the  sale 
thereof,  or  whether  the  same  should  be  sold.  {And  if  there  be 
any  liens  to  be  reported,  add:)  And  it  is  further  ordered,  that 
it  be  referred  to  said  master  to  ascertain  and  report  whether  the 
undivided  interest  or  estate  of  any  of  the  parties  to  this  suit  in 
said  lands  and  premises  is  subject  to  any  lien  by  mortgage,  judg- 
ment, decree,  devise  or  otherwise,  and  if  so,  to  what  liens  or 
encumbrances,  and  by  whom  they  are  held ;  and  to  ascertain  and 
report  the  amount  due  to  any  party  as  aforesaid,  who  has  such 
lien  on  the  said  premises. (a) 

And  it  is  further  ordered,  that  the  said  master  make  his  report 
to  the  Chancellor  on  the  day  of  next,  at 

o'clock  in  the  forenoon,  at  the  state-house,  in  Trenton. 

Order    extending    the    time    for    filing    master's 

report.  (6) 

( Title  of  cause.) 

It  appearing  to  the  court  that  the  master  to  whom  the  above- 
entitled  cause  was  referred,  was  directed  to  make  his  report  on 

(a)  Rev.  Sup ,  "Partition,"  I  4.  cree,  application  should  be  made  to 

(6)  When  the  master  has  completed  the  Chancellor,  before  the  time  fixed 

the  inquiiies  directed  by  the  order  of  for   the  .filing  of  the  report,  for   an 

reference,  he  must  make  and  file  his  order  extending  such   time.     In   the 

report   at   the   time   and    as   therein  absence  of  such  an  order,  where  the 

directed,  together  with  the  testimony  report  is  filed  after  the  time  fixed  by 

taken  before  him.    When  it  is  impos-  the  decree,  a  rule  nisi  to  confirm  the 

sible  for  the  master  to  report  on  the  report  will  be  necessary, 
day  directed  bv  the  interlocutory  de- 


PARTITION. 


415 


the  day  of  iostant,  and  that  he  will  be  unable  so  to 

do  :  It  is,  on  this  day  of  ,  &c.,  on  good  cause  shown, 

ordered,  that  the  time  for  filing  said  report  be  and  the  same  is 
hereby  extended  to  the  day  of  next,  at  ten  o'clock 

in  the  forenoon,  at  the  state-house,  in  Trenton. 


Master's  report    in    partition    that    sale  is  neces- 

sary.(a) 

{Title  of  cause.) 

In  pursuance  of  an  order  of  this  court,  made  in  the  above 
cause,  bearing  date  on  the  day  of  ,  eighteen  hundred 

and  ,  whereby  it  was  ordered  that  it  be  referred  to  the 

subscriber,  one  of  the  special  masters  of  this  court,  to  ascertain 
and  report  the  right,  title  and  interest  of  the  respective  parties 


(a)  In  deciding  whether  a  sale  is 
necessary  in  a  partition  suit,  the  true 
question  for  the  consideration  of  the 
master  is,  whether  the  aggregate  vahie 
of  the  several  parcels  into  which  the 
whole  premises  must  be  divided  will, 
when  distributed  among  the  different 
parties  in  severalty,  be  materially  less 
than  the  value  of  the  same  property, 
if  owned  by  one  person.  Cluson  v. 
Cla&on,  6  Paige  541.  A  decree  of  sale 
of  property  held  in  common  will  not 
be  justified,  where  the  aggregate 
amount  of  the  benefits  to  the  parties 
from  a  sale,  instead  of  an  actual  par- 
tition of  the  premises,  will  be  small 
in  reference  to  the  value  of  the  prop- 
erty of  which  a  partition  or  sale  is 
sought.  Smith  v.  Smith,  10  Paige  475. 
"Prejudice"  means  a  prejudice  to  all 
the  owners,  and  not  to  a  part  only. 
Van  Arsdale  v.  Drake,  2  Barb.  601. 
The  master  having  reported  that  the 
lands  could  not  be  divided  among  the 
heirs  without  great  prejudice  to  their 
interests,  and  the  court  being  unable, 
upon  the  evidence,  to  reach  the  same 
conclusion,  an  order  was  made  ap- 
pointing commissioners  to  make  par- 
tition among  the  owners,  according  to 


their  respective  interests,  unless  they 
should  be  of  opinion  that  such  parti- 
tion could  not  be  made  without  great 
prejudice,  in  which  case  they  were  to 
report  to  the  court  accordingly.  Wain 
V.  3feirs,  12  C.  E.  Gr.  351.  The  proper 
practice  for  the  complainant  in  such 
case,  where  the  commissioners  report 
that  partition  cannot  be  made  without 
great  prejudice,  is,  the  report  being 
filed,  to  apply  for  a  decree  for  sale. 
Notice  of  this  application  will  be 
given,  and  the  party  feeling  aggrieved 
by  the  report  may  present  his  objec- 
tions to  the  decree  for  sale.  Benlley  v. 
Long  Dock  Co.,  1  McCart.  480. 

If  a  partition  be  prayed,  and  all  the 
parties  (all  being  sui  juris)  agree  as  to 
the  divisibility  of  the  premises,  it 
may  be  ordered,  although  the  master 
reports  adversely.  Lands  not  described 
in  the  bill,  must  not  be  included  in 
the  master's  report.  A  survey  of  the 
premises  will  not  be  ordered  unless 
shown  to  be  clearly  necessary.  Where 
the  master  was  required  to  report  a 
description  of  the  premises  to  be  di- 
vided, he  must  describe  them  speci- 
fically. Barnes  v.  Taylor,  3  Stew. 
Eq.7. 


416  FOEMS   OF   PLEADINGS. 

in  the  premises  mentioned  and  described  in  the  bill  of  complaint 
in  this  cause ;  and  also  to  report  to  this  court  whether  the  prem- 
ises are  so  situated  that  a  partition  thereof  can  be  made  without 
great  prejudice  to  the  owners ;  and  in  case  such  partition  thereof 
cannot  be  made,  then  to  ascertain  whether,  in  case  of  a  sale  of 
said  premises,  under  the  circumstances  of  the  case,  having  regard 
to  the  interest  of  all  the  parties,  the  estate  and  interest  of  , 

widow  of  ,  deceased,  (if  any  she  have,)  as  tenant  in  dower 

in  the  said  premises,  ought  to  be  excepted  from  the  sale  thereof, 
or  whether  the  same  should  be  sold,  {add  here  any  other  di- 
rection that  may  be  necessary,)  and  that  he  make  his  report  to 
the  Chancellor  on  the  {date,)  at  ten  o'clock  in  the  forenoon,  at 
the  State-house,  in  Trenton,  I,  ,  do  hereby  report  to  his 

Honor  the  Chancellor,  that  I  have  been  attended  by  the  solicitor 
of  the  complainants,  and  in  his  presence  have  examined  the 
matters  referred  to  me  by  the  said  order,  and  I  do  find  and 
report  that  the  rights  and  interests  of  the  respective  parties  in 
the  premises  whereof  partition  is  sought  by  the  said  bill  of 
complaint,  are  as  follows:  1.  The  said  ,  widow  of  , 

deceased,  has  an  estate  in  dower  in  the  whole  of  said  premises. 
2.  That  the  complainant,  ,  is  seized  in  fee  of  one  undivided 

ninth  part  of  said  premises,  subject  to  said  estate  in  dower  of  the 
said  .     3.  The  defendants,  ,  are  each  respectively 

seized  in  fee  of  one  equal  undivided  ninth  part  of  said  premises, 
subject  to  said  estate  in  dower,  and  that  the  share  of  the  defend- 
ant, ,  is  subject  also  to  the  inchoate  right  of  dower  of  his 
wife,  ,  and  that  the  said  share  of  the  defendant,  , 
is  encumbered  by  a  mortgage  held  by  the  defendant,  , 
upon  which  there  is  due  for  principal  and  interest  at  the  date  of 
this  report  the  sum  of  ,  {and  further  according  to  the  report.) 
And  I  do  further  certify  and  report,  that  the  said  premises 
are,  in  my  opinion,  so  situate  that  a  partition  thereof  cannot  be 
made  between  the  parties  interested  therein  without  great  preju- 
dice to  the  owners  thereof,  and  that  my  reasons  for  this  opinion 
are,  that  the  premises  in  question  are  valuable  solely  for  farming 
purposes,  and  constitute,  as  a  whole,  a  farm  of  convenient  size, 
with  suitable  farm  buildings,  but  that,  if  divided  into  lots  among 
the  parties  interested  therein,  the  several  lots  would  be  too  small 
for  farming  purposes,  and  would  be  of  comparatively  little  value, 


PARTITION.  417 

as  appears  from  the  depositions  hereunto  annexed  {or  as  the  ease 
may  be.) 

And  I  do  further  certify  and  report,  that  under  all  the  cir- 
cumstances of  the  case,  regard  being  had  to  the  interest  of  all 
the  parties,  the  estate  of  ,  [widow  of  ,  deceased^ 

as  tenant  in  dower]  in  the  said  premises,  ought  not  to  be  excepted 
from  the  sale  thereof,  but  that,  in  case  of  a  sale  of  said  premises, 
her  said  estate  and  interest  should  be  sold. 

All  which,  as  further  directed  in  and  by  the  said  order,  I 
report,  on  this  day  of  ,  in  the  year  aforesaid. 

Notice  to  tenant  in  dower  or  by  the  curtesy  of 
application  for  sale  of  lands  free  from  such  estate.(o) 

To 

Take  notice,  that  application  will  be  made  to  the  Court  of 
Chancery,  at  the  state-house,  in  Trenton,  on  ,  the 

day  of  ,  [next,]  at  ten  o'clock  in  the  forenoon,  for  a  decree 

in  the  cause  pending  in  said  court,  wherein  is  complain- 

ant, and  and   you   and   others  are  defendants,  that  the 

lands  and  premises  in  question  in  said  cause  be  sold,  free  and 
discharged  of  your  estate  as  tenant  in  dower  \_or,  by  the  cur- 
tesy] therein.  {Signature  of  solicitor.) 

(a)  In  proceedings  for  the  partition  newspapers  printed  and  published  in 
of  lands,  *  *  *  *  jf  the  county  where  such  lands  are  situ- 
it  shall  appear  to  the  court  that  any  ate.  Rev.,  "Sale  of  land,''  |  18 ;  see 
person  is  entitled  to  an  estate  in  rule  168.  In  all  suits  in  the  Court  of 
dower,  or  by  the  curtesy,  in  the  Chancery  for  the  partition  or  sale  of 
whole,  or  any  part  or  share  of  the  lands,  where  the  personal  estate  of  the 
premises,  it  shall  be  lawful  to  decree  ancestor  from  whom  said  lands  de- 
a  sale  thereof  free  and  discharged  scended  is  insufficient  to  pay  his  just 
from  all  claims  by  virtue  thereof;  but  debts,  it  shall  be  lawful  for  the  Chan- 
notice  must  be  given  to  the  party  cellor  to  direct  such  lands  to  be  sold, 
entitled  to  the  said  estate  in  dower,  free  from  the  lien  of  such  debts,  and 
or  by  the  curtesy,  of  the  intended  ap-  to  make  such  order  touching  the  dis- 
plication  for  the  sale  of  said  lands  free  position  of  the  proceeds  of  sale  as  may 
and  discharged  of  such  estate,  at  lea=t  be  necessary  for  the  ascertainment 
twenty  days  prior  to  such  application,  and  payment  of  such  deficiency  there- 
or  by  publishing  such  notice,  at  least  out,  before  the  distribution  of  the 
four  weeks  next  preceding  the  time  of  fund.  Bev ,  "Sale  of  land,"  I  20. 
making  such  application,  in  one  of  the 

2b 


418  FORMS   OF   PLEADINGS. 

Decree  for  sale  in  partition  suit.(a) 
{Title  of  cause.) 

This  cause  coming  on  to  be  heard  in  the  presence  of  •, 

of  counsel  with  the  complainant,  and  it  appearing  that  in  pur- 
suance of  the  decretal  order  heretofore  made  in  this  cause,  by 
which  it  was  amongst  other  things  ordered  that  ,  one  of  the 

special  masters  of  this  court  should  make  his  report,  on  the 
day  of  ,  eighteen  hundred  and  ,  at  ten  o'clock 

A.  M.,  at  the  State-house,  in  Trenton,  of  the  matters* referred  to 
him  by  said  order;  and  said  master  having  made  a  report 
accordingly,  by  which  it  appears  that  the  rights  and  interests  of 
the  parties  in  the  premises  described  in  the  complainant's  bill 
are  as  hereinafter  declared ;  and  that  the  said  lands  and  premises 
are  so  situate  that  a  partition  thereof  cannot  be  made  without 
great  prejudice  to  the  owners  of  the  same;  and  that,  in  case  of 
a  sale  of  said  premises,  under  all  the  circumstances  of  the  case, 
regard  being  had  to  the  interests  of  all  the  parties,  the  estate  of 
the  defendant,  ,  as  tenant  in  dower  of  the  said  premises, 

ought  not  to  be  excepted  from  the  sale,  but  should  be  sold  {if 
the  report  has  not  been  filed  in  due  time,  insert  service  of  rule  nisi, 
as  follows:  "and  it  appearing  that  a  copy  of  the  rule  nisi  to  con- 
firm said  report  has  been  duly  served  upon  the  defendants;") 
and  no  cause  being  shown  or  appearing  against  confirming  the 
said  report:    It  is  thereupon,  on  this  day  of  , 

eighteen  hundred  and  ,  by  his  Honor  ,  Chancellor 

of  the  State  of  New  Jersey,  ordered,  adjudged  and  decreed,  and 
the  said  Chancellor  does,  by  virtue  of  the  power  and  authority 
of  this  court,  hereby  order,  adjudge  and  decree,  that  the  said 
master's  report,  and  the  matters  and  things  therein  contained, 

(a)  In  partition  proceedings,  where  accomplished,  and  a  sale  of  the  part 

an  answer  has  been  filed,  the  court  of  which  an  actual  partition,  without 

usually  determines  on  the  hearing,  on  great  prejudice,  is  impracticable.  Rev., 

the  evidence,  as  to  the  divisibility  of  ''Partition,"  I  37.    In  making  sale,  the 

the  property.     In  case  of  default,  it  property  may  be  subdivided  and  sold 

determines  the  question  on  the  evi-  in  separate  parcels,  if  that  manner  of 

dence   and  the   report  of    a  master.  proceeding   be  deemed   best   for  the 

Wain  V.  Meirs,  12  C.  E.  Gi:  11.    The  interests  of  the  parties.      WainwdgU 

court  may  decree  an  actual  partition,  v.  Rowland,  25  Mo.  53. 
so  far  as  the  same  can  be  beneficially 


PARTITION.  419 

stand  ratified  and  confirmed ;  and  that  the  parties  to  this  suit, 
hereinafter  named,  are  seized  of  and  entitled  to  the  lands  and 
premises  described  in  the  complainant's  bill,  with  the  appurte- 
nances; and  that  their  respective  rights  and  interests  therein  are, 
and  they  are  hereby  ascertained,  adjudged  and  declared  to  be  as 
follows,  to  wit:  The  complainant  is  seized  in  fee  of  and  entitled 
to  the  one  undivided  ninth  part  of  the  said  premises,  subject  to 
the  right  of  dower  of  ,  (widow  of  ,  deceased,)  in  the 

whole  premises.     The  defendants,  ,  are  each  respectively 

seized  of  and  entitled  to  one  equal  undivided  ninth  part  of  said 
premises,  subject  to  the  right  of  dower  of  the  said  as 

aforesaid ;  the  share  of  the  defendant,  ,  being  also  subject 

to  the  inchoate  right  of  dower  of  his  wife,  ,  and  the  de- 

fendant, ,  widow  as  aforesaid,  is  entitled  to  dower  in  the 

whole  of  said  premises  {or  stating  the  shares  and  interests,  and 
liens,  if  any,  as  they  appear  by  the  master's  report.){a) 

And  it  is  further  ordered,  adjudged  and  decreed,  that  all  and 
singular  the  said  premises  mentioned  in  the  said  bill  of  com- 
plaint, and  therein  described  as  follows,  to  wit,  (here  describe 
the  premises,)  including  the  estate  and  interest  in  dower(6)  of 

(a)  In  partition  suits  where  all  or  vested  and  kept  invested  in  the  name 
any  of  the  undivided  shares  of  lands  of  the  State  of  New  Jersey,  under  the 
is  or  are  limited  over  in  the  manner  order  and  direction  of  the  Court  of 
specified  in  section  twenty- five,  a  sale  Chancery,  for  the  use  of  the  person  or 
thereof  may  be  made  upon  an  order  persons  owning  such  share,  upon  bond 
or  decree  of  the  Court  of  Chancery,  secured  by  mortgage  to  said  state, 
when  such  proceedings  shall  have  been  either  upon  the  property  so  sold,  or 
commenced  in  that  court ;  but  no  such  any  part  thereof,  or  the  fee  simple  of 
sale  shall  be  ordered  unless  a  division  other  unencumbered  real  estate  in  this 
of  said  lands  cannot  be  made  without  state,  worth  at  least  double  the  princi- 
impairing  their  value  to  the  extent  of  pal  sum  so  secured  thereon,  two- 
at  least  one-fourth  part  thereof,  and  thirds  of  which  value  shall  be  in  the 
shall  be  so  reported  or  otherwise  made  land  itself,  independently  of  any  build- 
to  appear  to  the  satisfaction  of  the  ing  thereon.  Id.,  I  27.  See  also,  as 
Chancellor.  Rev.,  " Partilion,"  §  26.  to  investment  of  proceeds  of  sale, 
A  sale  made  as  aforesaid,  and  the  deed  Pamph.  L.,  1891,  p.  423. 
to  the  purchaser  shall  convey  the  title  (6)  The  party  entitled  to  an  estate  in 
to  said  lands  of  all  the  tenants,  either  dower  or  by  curtesy,  may  waive  the 
in  possession,  remainder,  reversion  or  notice  required  by  the  lG8th  rule,  by 
expectancy ;  but  the  net  proceeds  of  filing  his  or  her  consent,  or  the  consent 
the  sale  of  any  share  not  held  in  fee  of  his  or  her  solicitor,  to  such  sale ;  the 
simple  or  limited  over  shall  be  in-  signature,  if  of  the  party,  must   be 


420 


FORMS   OF   PLEADINGS. 


the  defendant,  ,  widow  of  ,  deceased,  in  the  said 

premises,  and  including  also  the  inchoate  right  of  dower  of  the 
defendant,  ,  wife  of  said,  ,  together  with  all  and 

singular  the  hereditaments  and  appurtenances  to  the  said  premises 
belonging  or  in  anywise  appertaining,  be  sold(a)  [at  public 
vendue,  to  the  highest  bidder,]  in  the  presence  and  under  the 
direction  of  ,  one  of  the  special  masters  of  this  court. 

And  it  is  further  ordered,  that  the  said  master  sell  the  same 
in  such  portions  as  to  him  may  seem  most  for  the  interest  of  the 
parties ;  and  that  he  [give  public  notice  of  the  time  and  place  of 
such  sale,  and]  in  all  respects  conduct  the  same  according  to  the 
provisions  of  the  statutes  in  such  case  provided;  and  that  he 
forthwith,  after  such  sale,  make  report  thereof  to  this  court,  and 
after  his  report  of  sale  shall  have  been  confirmed  by  this  court, 
make  and  execute  unto  the  purchaser  or  purchasers  good  and 
sufficient  conveyances  in  the  law  for  the  said  real  estate,  upon 
their  complying  with  the  conditions  of  such  sale;(6)  and  that 


verified  by  affidavit.  Bde  169.  In 
Bleecker  v.  Hennion,  8  C.  E.  Gr.  123, 
it  was  decided  upon  the  facts  of  that 
case,  that  the  premises  should  be  sold 
subject  to  the  widow's  dower. 

(a)  In  all  cases  whatsoever,  where 
sale  of  any  lands,  tenements,  heredita- 
ments or  real  estate  shall  be  ordered 
by  the  Court  of  Chancery  to  be  made, 
(except  sales  for  the  payment  and 
satisfaction  of  mortgages,)  the  officer 
or  person  authorized  or  directed  by 
said  court  to  make  such  sale,  may 
make  sale,  *  *  *  at  public  or 
private  sale,  in  his  discretion,  and  on 
such  terms  as  such  officer  or  person 
may  deem  to  be  most  advantageous  to 
the  parties  concerned  therein ;  j^ro- 
cided,  that  no  sale  *  '■''  *  made  by 
such  officer  or  person  at  private  sale 
shall  be  valid  until  such  sale  shall 
have  been  confirmed  by  the  Chan- 
cellor, upon  a  report  thereof  by  the 
officer  or  person  making  the  same. 
Pamph.  L.,  1889,  p.  217.     If  it  be  de- 


sired to  make  a  private  sale,  the  de- 
cree should  provide  for  such  sale  and 
the  forms  be  modified  accordingly. 
It  is  also  necessary  to  establish  the 
propriety  and  advantage  of  a  private 
sale  to  the  satisfaction  of  the  Chan- 
cellor, by  affidavits  annexed  to  the 
ref  ort  of  sale. 

(6)  When  the  court  determines  upon 
sale  of  the  whole  or  some  part  of  the 
property,  it  appoints  one  of  the  special 
masters  of  the  court  to  make  the  sale. 
The  manner  of  conducting  the  sale, 
the  notice  to  be  given  thereof  and  the 
powers  and  duties  of  the  master  are 
governed  generally  by  the  statutory 
regulations  applicable  to  sales  of  land. 
See  Rev.,  "Sale  of  land."  But  the  sale 
must  be  reported  to  the  court,  when  it 
may  be  confirmed  or  set  aside.  The 
master  who  may  make  the  report 
whether  partition  can  be  made  with- 
out great  prejudice,  will  in  no  case  be- 
appointed  to  make  sale  of  the  prem- 
ises.    Mule  171. 


PARTITION.  421 

such  sale  and  conveyance  or  conveyances,  duly  executed  as  afore- 
said, be  valid  and  effectual  forever,  and  operate  as  an  effectual 
bar,  both  at  law  and  in  equity,  against  the  said  parties,  com- 
plainant and  defendant,  and  all  persons  claiming  by,  from  or 
under  them,  or  any  of  them.  {If  there  are  any  liens  on  an  un- 
divided share,  <fcc.,  add,  "and  that  he  bring  into  court  and  pay 
to  the  clerk  thereof  the  portion  of  the  moneys  arising  from  the 
sale  of  the  estate,  share  and  interest  of  the  defendant,  , 

which  is  subject  to  the  [mortgage]  aforesaid,  after  deducting  the 
portion  of  the  costs,  charges  and  expenses  to  which  it  shall  be 
liable,  to  the  end  that  the  same  may  be  disposed  of  by  the  Chan- 
cellor as  he  shall  by  order  direct.") 

And  it  is  further  ordered,  that  the  said  parties,  or  either  of 
them,  be  at  liberty  to  apply  to  this  court  for  further  directions, 
if  occasion  shall  require. 

Report  of  sale  in  partition  suit.(a) 
{Title  of  cause.) 

In  pursuance  of  a  decree  made  by  the  Chancellor  in  the  above 
cause,  bearing  date  on  the  day  of  ,  eighteen  hundred 

and  ,  by  which   it  was,  among   other   things,  ordered, 

(a)  The  liighest  bidder  acquires,  to  any  court  *  *  *  having 
when  the  property  is  struck  off  to  jurisdiction  in  matters  of  partition, 
him,  and  he  is  declared  the  purchaser,  in  which  jjrocess  has  been  served  or 
a  right  not  complete,  but  inchoate,  notice  given  in  the  manner  required 
and  that  right  is  to  have  the  court  by  law,  and  any  sale  of  lands  by  vir- 
approve  the  sale  and  to  have  a  deed  tue  of  an  order  therefor  made  in  any 
for  the  property,  unless  for  good  cause  such  proceeding  for  partition,  shall  be 
the  sale  should  be  set  aside.  And  a  binding  and  conclusive  upon  all  co- 
purchaser  may  appeal  from  an  order  parceners,  joint  tenants  or  tenants  in 
setting  the  sale  aside.  Conover  v.  Wal-  common,  and  all  persons  claiming  or 
ling,  2  McCart.  167.  The  proceedings  to  claim  any  interest  iu  any  share  in 
may  be  discontinued  by  the  complain-  said  lands,  in  reversion  or  remainder, 
ant  at  any  time  before  the  order  ap-  notwithstanding  any  error  or  illegality 
proving  the  sale  is  made,  by  consent  in  such  proceedings  for  partition  or 
of  all  the  parties  and  upon  making  sale,  unless  such  proceedings  shall 
indemnity  to  all  concerned  for  costs  have  been  reversed  or  set  aside  on 
and  expenses.  Bellerjeau  v.  Ely,  3  Hal.  *  *  *  proceedings  to  review 
273.  Any  partition  of  lands  made  on  the  same  brought  within  three  years 
application  by  any  coparcener,  joint  after  such  partition  or  sale.  Bev., 
tenant  or  tenant  in  common  therein  "Paiiition,"  'i  43. 


422  FORMS   OF   PLEADINGS. 

adjudged  and  decreed,  that  all  and  singular  the  premises  in  the 
bill  of  complaint  mentioned  and  described,  with  the  appurte- 
nances, be  sold  at  public  vendue,  to  the  highest  bidder,  in  the 
presence  and  under  the  direction  of  the  subscriber,  one  of  the 
special  masters  of  this  court ;  and  that  the  said  master  should 
give  public  notice  of  the  time  and  place  of  such  sale,  and  in  all 
respects  conduct  the  same  according  to  the  provisions  of  the 
statutes  in  such  case  provided;  and  thai  after  such  sale,  he 
should  make  a  report  thereof  to  this  court,  I,  ,  master  as 

aforesaid,  do  hereby  report  to  his  Honor  the  Chancellor,  that 
I  did,  by  public  advertisements,  signed  by  myself,  and  set  up  at 
five  or  more  public  places  in  the  county  of  ,  one  whereof 

was  in  the  township  of  ,  (or  ward,  if  in  a  city,)  where  said 

real  estate  is  situate,  at  least  four  weeks  next  before  the  time 
appointed  for  selling  the  same,  and  also  published  in  the 
and  ,  two  of  the  newspapers  printed  and  published  in  the 

county  of  ,  in  which  said  real  estate  is  situate,  of  which 

one  was  a  newspaper  printed  and  published  at  the  county  seat  of 
said  county,  in  the  German  language,  and  designated  to  pub- 
lish the  laws  of  this  state,  and  one  of  which  was  a  newspaper 
printed  and  published  also  at  the  county  seat  of  said  county, 
{or  aoGording  to  the  fact,)  at  least  four  weeks  successively,  once 
a  week,  next  preceding  the  time  appointed  for  said  sale,  give 
public  notice  that  the  said  lands  and  premises  would  be  exposed 
to  sale  at  public  vendue,  on  ,  the  day  of  , 

eighteen  hundred  and  ,  at  o'clock  in  the  noon, 

upon  the  premises,  {or  as  the  case  may  be;)  and  at  the  time  and 
place  so  appointed  and  advertised,  did  publicly  adjourn  the  said 
sale  until  the  day  of  ,  &c.,  at  the  hour  of,  &c., 

at  the  place  aforesaid.  (//  the  adjournment  was  for  more  than 
one  week,  add,  "which  said  adjournment  was  advertised  in  the 
same  two  newspapers  in  which  the  notice  of  sale  was  published ;") 
and  at  the  time  and  place  to  which  the  said  sale  was  adjourned 
as  aforesaid,  did  expose  the  said  lands  and  premises  to  sale  at 
public  vendue,  to  the  highest  bidder;  and  then  and  there 

bidding  therefor  the  sum  of  dollars,  by  the  acre,  (the  tract 

containing  acres,)  and  no  one  bidding  so  much  or  more 

for  the  same,  the  said  tract  of  land  and  premises  was  struck  off 


PAETITION.  42S 

and  sold  to  the  said  at  the  price  aforesaid,  amounting  for 

the  tract  to  the  sum  of  dollars. 

Respectfully  submitted,  this  day  of  ,  eighteen 

hundred  and 

Verification.(a)  ,  the  above-named  master  in  chan- 

cery, being  duly  sworn,  on  his  oath  says  that  the  property 
referred  to  in  the  foregoing  report  was  sold  by  him  at  the  highest 
and  best  price  the  same  would  then  bring  in  cash. 

[Jurat.)  (Signature.) 

Proof  of  advertisement  of  sale  by  posters. 

State  of  ,    "I 

r  '        >  SS. 

county  of  ,    j 

,  of  full  age,  being  duly  sworn  according  to  law,  on  his 
oath  says — that  on  the  day  of  ,  eighteen  hundred 

and  ,  he  set  up,  at  five  or  more  public  places  in  the  county 

of  ,  in  said  State  of  New  Jersey,  an  advertisement  of  sale 

in  the  cause  wherein  {stating  title  of  cause,)  of  which  the  annexed 
is  a  true  copy,  to  wit,  one  at  ,  in  the  township  of  , 

in  said  county,  {and  so  on,  designating  four  of  the  places  in  the 
county  where  the  posters  were  set  up,  and  add,  "  and  one  at  , 

in  the  township  of  ,  in  said  county,"  or  ward,  if  in  a  city,) 

where  the  real  estate  described  in  said  advertisement  of  sale  is 
situate.  (Signature.) 

Sworn,  &c. 

Proof  of  advertisement  of  sale  in  newspaper. 

State  of 


county  of 

,  of  full  age,  being  duly  sworn  according  to  law,  on  his 
oath  says — that  he  is  the  publisher  (or  as  the  case  may  be)  of 

,  a  newspaper  printed  and  published  at  ,  in  said 

state;  and  that  the  notice  of  sale,  of  which  the  annexed  is  a 
printed  copy,  was  published  in  said  newspaper  on  the  day 

of  ,  &c.,  and  continued  to  be  published  therein  for  at  least 

(a)  See  Pamph.  L.,  1890,  p.  138. 


424  FORMS   OF   PLEADINGS. 

four  weeks  successively,  at  least  once  a  week,  the  last  publication 
thereof  being  on  the  day  of  ,  &c. 

Sworn,  &c.  {Signature.) 

Order  confirming  sale  in  partition. (a) 

(Title  of  cause.) 
Upon  reading  and  filing  a  report  made  in  the  above  cause  by 
,  one  of  the  special  masters  of  this  court,  bearing  date  on 
the  day  of  ,  eighteen  hundred  and  ,  by  which 

it  appears  that,  in  pursuance  of  the  decree  made  in  this  cause, 
bearing  date  on  the  day  of  last,  wherein  it  was 

ordered  and  decreed,  that  the  premises  in  the  bill  of  complaint 
in  this  cause  described,  with  the  appurtenances,  be  sold  at  public 
vendue  to  the  highest  bidder,  in  the  presence  and  under  the 
direction  of  the  said  ,  master  as  aforesaid,  the  said  master 

having  given  public  notice,  according  to  law  and  the  directions 
of  the  said  decree,  of  the  time  and  place  when  and  where  the 
said  lands  and  real  estate  would  be  exposed  to  sale,  {state  here 
adjournment,  if  any,  as  in  the  report;)  and  at  the  time  ^nd 
place  so  appointed,  to  wit,  on  ,  the  day  of  , 

eighteen  hundred  and  ,  at  o'clock  in  the 

noon,  upon  the  premises,  did  publicly  adjourn  said  sale  to,  &c., 
and  at  the  time  and  place  to  which  said  sale  was  adjourned  as 
aforesaid,  and  between  the  hours  of  (two)  and  five  o'clock  in  the 
afternoon  did  expose  the  said  lands  and  premises  to  sale  at  public 
vendue,  to  the  highest  bidder,  and  bidding  therefor  the 

sum  of  dollars,  by  the  acre,  and  being  the  highest  bidder 

for  the  same,  the  said  premises  were  then  and  there  struck  off 
and  sold  to  the  said  at  the  price  aforesaid,  amounting,  for 

the  whole  quantity  of  acres,  to  the  sum  of  dollars; 

and  it  appearing  by  affidavit  that  the  property  was  sold  at  the 
highest  and  best  price  the  same  would  then  bring  in  cash,  and 
no  cause  being  shown  or  appearing  against  confirming  the  said 

(a)  "Where  the  proceedings  are   ex  papers,  must  be  attached  to  the  report. 

■parte,  application  for  confirmation  of  For  form  of  such  proof,  see  page  423, 

the  sale  may  be  made  upon  the  com-  &c.,  supra ;  see  also  Rev.,  "Partition," 

ing  in  of  the  master's  report ;  proofs  ^  40.     For  practice  to  cure  defective 

of  advertisement  by   posters,  and  of  advertisements  of  sale  of  real  estate, 

the  statutory  publication  in  the  news-  see  Pamph.  L.,  1891,  p.  24. 


PARTITION.  425 

report:   It  is,  on  this  day  of  ,  eighteen  hundred  and 

,  on  motion  of  ,  of  counsel  with  the  complainants, 

ordered  and  decreed,  that  the  said  master's  report,  and  al]  the 
matters  and  things  therein  contained,  do  stand  ratified  and  con- 
firmed ;  and  that  the  said  master  do  make,  execute  and  deliver 
to  the  said  ,  in  compliance  with  the  aforesaid  decree,  [or 

to  his  assigns,]  a  good  and  sufficient  conveyance  in  the  law  for 
the  said  lands  and  real  estate  purchased  by  him  as  aforesaid, 
upon  his  complying  with  the  conditions  of  said  sale. 

Master's  deed  after  sale  in  partition.  This  indenture, 
made  this  day  of  ,  eighteen  hundred  and  , 

between  ,  one  of  the  special  masters  in  chancery  of  the 

State  of  New  Jersey,  party  of  the  first  part,  and  ,  of  the 

city  of  ,  county  of  ,  and  State  of  New  Jersey,  party 

of  the  second  part : 

Witnesseth,  That  wherea?,  by  a  certain  decree  of  the  Court 
of  Chancery  of  New  Jersey,  in  a  cause  therein  depending, 
wherein  is  complainant,  and  and  (others)  are  defend- 

ants, bearing  date  the  day  of  ,  eighteen  hundred 

and  ,  it  was,  among  other  things,  ordered,  adjudged  and 

decreed,  that  all  and  singular  the  premises  in  said  decree  particu- 
larly set  forth  and  described,  (being  the  premises  hereinafter 
described,  with  the  appurtenances,)  should  be  sold  at  public 
vendue,  to  the  highest  bidder,  in  the  presence  and  under  the 
direction  of  ,  one  of  the  special  masters  of  the  said  court, 

in  such  portions  as  to  him  might  seem  most  for  the  interest  of 
the  parties;  and  that  he  should  give  public  notice  of  the  time 
and  place  of  such  sale,  and  in  all  respects  conduct  the  same 
according  to  the  provisions  of  the  statute  in  such  case  made 
and  provided ;  and  that  the  said  master  should  forthwith,  after 
such  sale,  make  report  to  the  said  court,  and  after  his  report 
should  have  been  confirmed  by  the  said  court,  should  make, 
execute  and  deliver  to  the  purchaser  or  purchasers  of  said  land 
and  premises,  good  and  sufficient  conveyances  in  the  law  there- 
for, upon  their  complying  with  the  conditions  of  such  sale;  and 
that  such  sale  and  conveyance  or  conveyances,  duly  executed 
as  aforesaid,  should  be  valid  and  effectual  forever,  and  should 
operate  as  an  effectual  bar,  both  at  law  and  in  equity,  against 


426  FORMS   OF   PLEADINGS. 

the  parties  complainant  and  defendant  in  the  said  cause,  and  all 
persons  claiming  by,  from  or  under  them,  or  any  of  them. 

And  whereas,  to  the  end  that  a  sale  of  said  lands  and  premises 
described  in  the  said  decree  should  be  made  pursuant  to  the 
said  decree,  the  said  ,  master,  by  public  advertisements, 

signed  by  himself,  and  set  up  at  five  or  more  public  places  in 
the  county  of  ,  one  whereof  was  in  the  ward  of  the  said 

city  of  ,  in  said  county  of  ,  in   which  said    real 

estate  is  situate,  at  least  four  weeks  next  before  the  time 
appointed  for  selling  the  same,  and  also  published  in  and 

,  two  of  the  newspapers  printed  and  published  in  the 
said  county  of  ,  (both  of  which  are  printed  and  published 

at  the  county  seat  of  said  county,)  at  least  four  weeks  succes- 
sively, once  in  each  week  next  preceding  the  said  time,  did  give 
public  notice  of  the  time  and  place  when  and  where  the  said 
lands  and  premises  would  be  exposed  to  sale  by  public  vendue  ; 
and  the  said  master,  at  the  time  and  place  so  appointed,  that  is 
to  say,  on  ,  the  day  of  ,  eighteen   hundred 

and  ,  at  o'clock  in  the  afternoon,  at  ,  in 

the  county  of  ,  and  State  of  New  Jersey,  did  adjourn  the 

sale  of  the  said  lands  and  premises  to  ,  the  day  of 

,  eighteen  hundred  and  ,  at  o'clock  in  the 

afternoon,  at  ;  at  which  last- mentioned  time  and  place  so 

appointed,  the  said  master  did  further  adjourn  the  said  sale  to 

,  the  day  of  ,  eighteen  hundred  and  , 

at  o'clock  in  the  afternoon  of  said  day,  at  the  same  place ; 

at  which  time  and  place  so  last  appointed,  the  said  master  did 
expose  the  said  lands  and  premises  to  sale  at  public  vendue,  to 
the  highest  bidder,  and  then  and  there  bidding  for  the 

said  land  and  premises,  the  sum  of  dollars,  and  no  one 

bidding  so  much  for  the  same,  the  said  land  and  premises, 
hereinafter  particularly  described,  were  then  and  there  struck  off 
and  sold  to  the  said  at  the  price  aforesaid,  the  highest 

bidder  for  the  same. 

And  whereas,  the  said  ,  master  as  aforesaid,  did  make 

his  report  of  sale  to  the  said  Court  of  Chancery,  which  said 
report  was,  by  an  order  of  that  court,  made  on  the  day  of 

,  eighteen  hundred  and  ,  duly  confirmed,  and  the 

said  master  was  thereby  ordered  to  make,  execute  and  deliver  to 


PARTITION.  427 

the  purchaser  of  said  real  estate,  in  compliance  with  the  afore- 
said decree,  [or  to  his  assigns,]  a  good  and  sufficient  conveyance  in 
the  law  for  the  said  land  and  real  estate  purchased  by  him  as 
aforesaid,  upon  his  complying  with  the  conditions  of  said  sale. 

And  whereas,  subsequent  to  the  said  sale  the  said  ,  by 

his  deed  of  assignment,  in  writing,  did  assign  and  transfer  unto 
the  aforesaid  bid  made  by  him  at  the  said  sale  for  the 
said  property  hereinbefore  mentioned,  and  all  of  his  interest 
therein,  and  did  authorize  and  direct  the  deed  for  said  property 
to  be  executed  and  delivered  to  the  said  ,  upon  his  com- 

plying with  the  conditions  of  said  sale : 

Now  this  indenture  witnesseth,  that  the  said  ,  master  as 

aforesaid,  by  virtue  of  the  premises,  and  for  and  in  consideration 
of  dollars,  lawful  money  of  the  United  States  of  America, 

to  him  in  hand  paid,  the  receipt  whereof  is  hereby  acknowledged, 
has  granted,  bargained  and  sold,  and  by  these  presents  does 
grant,  bargain,  sell  and  convey  unto  the  said  ,  his  heirs 

and  assigns,  all,  &c.,  (describe  premises,)  together  with  all  and 
singular  the  hereditaments  and  appurtenances  to  the  same 
belonging  :  To  have  and  to  hold  the  said  lands,  hereditaments 
and  appurtenances  to  the  said  ,  his  heirs  and  assigns,  to 

his  and  their  only  proper  use,  benefit  and  behoof  forever, 
according  to  the  true  intent  and  meaning  of  the  said  decree  and 
proceedings  above  mentioned,  and  the  acts  of  the  legislature  of 
the  State  of  New  Jersey  in  such  case  made  and  provided. 

In  witness  whereof,  the  said  ,  master  as  aforesaid,  has 

hereto  set  his  hand  and  seal,  the  day  and  year  first  above  written. 

Signed,  sealed  and  deliv-  [l.  s.] 

ered  in  presence  of — 

Acknowledgment. 

State  of  New  Jersey, 

county  of  , 

Be  it  remembered,  that  on  this  day  of  ,  eighteen 

hundred  and  ,  before  the  subscriber,  a  master  in  chancery 

of  New  Jersey,  personally  appeared  ,  master  in  chancery^ 

who,  I  am  satisfied,  is  the  grantor  in  the  foregoing  deed  of  con- 
veyance named,  and  I  having  first  made  known  to  him  the  con- 


428  FORMS   OF   PLEADINGS. 

tents  thereof,  he  thereupon  acknowledged  that  he  signed,  sealed 
and  delivered  the  same  as  his  voluntary  act  and  deed,  for  the 
uses  and  purposes  therein  expressed. 

The  following  certificate  and  ajidavit  may  be  added: 

State  of  New  Jersey, 

county  of  , 

I,  ,  master  in  chancery,  do  solemnly  swear  that  the 

real  estate  described  in  this  deed,  made  by  me  to  ,  was  by 

me  sold  by  virtue  of  a  good  and  subsisting  decree,  as  is  therein 
recited ;  that  the  time  and  place  of  the  sale  of  the  said  land  and 
real  estate  were  by  me  duly  advertised,  as  required  by  law;  and 
that  the  same  was  cried  oiF  and  sold  to  a  bona  fide  purchaser,  for 
the  best  price  that  could  be  obtained. 

Sworn  before  me,  ,  one  of  the  masters  in  chancery  of 

New  Jersey,  on  this  day  of  ,  eighteen  hundrad  and 

,  and  I  having  examined  the  deed  above  mentioned,  do 
approve  the  same,  and  order  it  to  be  recorded  as  a  good  and 
sufficient  conveyance  of  the  land  and  real  estate  described 
therein. 

Order  for  distribution  in  partition  suit. (a) 

(Title  of  cause.) 
This  cause  being  opened  to  the  court  by  ,  of  counsel 

with    the  complainants,  and  it  appearing,  by  a  report  hereto- 

(a)  It  is  provided  by  statute  that  to  every  such  party  shall  be  put  out 

the  moneys  arising  from  every  sale  in  at    interest  on   sufficient  security   of 

partition  made  by  commissioners  shall  real   property,  or  invested  in  public 

be  ordered  by  the  court  to  be  paid  by  stock,  by  order  and  under  the  direc- 

the  commissioners  to  the  parties  in-  tion  and  control  of  the  court,  for  the 

terested  in  the  real  estate  so  sold,  their  benefit  of   the   absent    party.      Rev., 

guardians  or  legal  representatives,  in  "FartUion,"  I  22.     The  practice  indi- 

proportion  to  their  respective  rights  in  cated  by  the  foregoing  section  is  ap- 

the  same,  deducting  from  their  respec-  plicable  to  the  case  of  sales  by  a  mas- 

tive  shares  the  costs  and  charges  which  ter,  under  the  jurisdiction  of  the  Court 

may  be  allowed  and  ordered  to  be  re-  of  Chancery. 

tained  out  of  the  same ;  and  if  any  of  As  to  payment  to  judgment  credi- 

the  parties  shall  be  absent  from  this  tors  of  distributees  and  how  ordered, 

state,  without  such  legal  representa-  see  Pamph.  L.,  1888,  p.  298. 
tive,  the  proportion  of  the  money  due 


PARTITION.  429 

fore  made  by  ,  one  of  the  special  masters  of  this  court, 

and  now  on  file,  that  the  gross  proceeds  of  the  sale  of  the  real 
estate  and  premises  in  the  bill  of  complaint  mentioned,  as  made 
by  the  said  master,  amount  to  the  sum  of  dollars. 

And  it  further  appearing  that  ,   (widow  of  , 

deceased,)  was  entitled  to  an  estate  in  dower  in  the  whole  of  said 
premises,  which  said  estate  was  sold  therewith  by  order  of  this 
court,  *  {or  after  *,  "  and  that  she  has  consented,  in  a  writing, 
signed  by  her,  and  filed  in  this  court,  to  accept  a  sum  in  gross 
in  lieu  of  her  said  dower : ")  It  is  thereupon,  on  this 
day  of  ,  eighteen  hundred  and  ,  ordered,  that  the 

sum  of  dollars,  being   such  part  of  the  moneys  arising 

from  said  sale  as  has  been  adjudged  by  the  Chancellor  to  be  just 
and  reasonable,  f  be  put  out  at  interest  by  the  said  master,  under 
the  direction  of  the  court,  upon  good  real  security,  by  bond  and 
mortgage  to  the  Chancellor  of  this  state,  and  in  such  manner 
that  the  said  interest  may  be  paid  by  the  mortgagor  to  the  said 
once  in  each  year,  and  that,  at  the  decease  of  the  paid 
,  the  said  sum  of  dollars,  may  be  distributed  among 

the  parties  interested  therein  according  to  law,  and  that  the  said 
bond  and  mortgage  be  endorsed  approved  by  said  master,  and 
after  record  of  the  said  mortgage,  be  deposited  by  said  master 
with  the  clerk  of  this  court,  {or,  if  the  widow  has  consented  to 
accept  a  sum  in  gross,  after  f  add,  "  be  paid  to  ,  widow  of 

,  deceased,  in  satisfaction  of  her  dower  in  said  premises.") 
And  it  is  further   ordered,  that  out   of  the   remainder  of 
the  proceeds  of  said  sale,  the  said  ,  master  as  aforesaid, 

do  pay  to  the  solicitor  of  the  complainants  their  costs  of  this  suit 
to  be  taxed  (and  a  counsel  fee  of  dollars,)  and  retain  his 

fees  and  commissions  on  said  sale,  as  allowed  by  law  and  the 
practice  of  this  court ;  and  that  of  the  residue  he  do  pay  to  the 
complainant,  ,  one  part,  {if  there  be  an  inchoate  right 

of  dower,  say,  "  upon  his  wife,  ,  consenting  thereto  in 

writing,  acknowledged  as  deeds  are  required  to  be  acknowledged 
by  married  women/')  and  to  the  defendant,  ,  one 

part,  and  to  the  guardians  of  each  of  the  several  infant  defend- 
ants, ,  one  part,  upon  their  severally  executing 
bonds  to  the  Ordinary  of  this  state,  with  sufficient  sureties,  in 
double  the  amount  of  such  part,  which  said  bonds  shall 


430  FORMS   OF   PLEADINGS. 

be  approved  by  said  master,  and  shall  be  filed  with  the  clerk  of 
this  court.  {If  there  are  any  liens  or  eneumbrances  on  a  share 
of  any  of  the  parties,  add,  "  and  that  said  master  bring  into 
court  and  pay  to  the  clerk  thereof  the  portion  of  the  moneys 
arising  from  said  sale  of  the  share  and  interest  of  the  defendant, 
,  to  the  end  that  the  same  may  be  disposed  of  by  the 
Chancellor  as  he  shall  by  his  order  direct.") 

And  it  is  further  ordered,  that  the  said  master  file  with  the 
clerk  of  this  court  a  statement  of  his  fees,  disbursements  and 
commissions  under  these  proceedings,  together  with  a  statement 
or  report  of  the  distribution,  disposition  (and  investment)  of  the 
moneys  that  have  come  to  his  hands  as  the  proceeds  of  said  sale, 
and  in  case  the  said  master  shall  be  unable  to  comply  with  the 
directions  of  this  order  in  the  payment  of  any  of  the  distributive 
shares,  he  shall  deposit  any  moneys  remaining  in  his  hands  pur- 
suant to  the  two  hundred  and  sixteenth  rule  of  this  court. 

Guardian's  bond  for  infant's  share  on  sale  in  par- 
tition.(a)     Know  all  men  by  these  presents,  that  we, 
and  ,  of  ,  are  held  and  firmly  bound  unto  the 

Ordinary  of  the  State  of  New  Jersey  in  the  sum  of 
dollars,  lawful  money  of  the  United  States  of  America,  to  be 
paid  to  the  said  Ordinary  of  the  State  of  New  Jersey,  or  his 
successors,  to  which  payment  well  and  truly  to  be  made,  we  bind 
ourselves,  our  and  each  of  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents.  Sealed  with  our 
seals.     Dated  the  day  of  ,  &c. 

Whereas,  the  above-bounden  ,  by  an  order  of  the  sur- 

rogate of  the  county  of  ,  made  on  or  about  the  day  of 

,  &c.,  was  appointed  guardian  of  the  person  and  property 
of  ,  a  minor  under  {or  "  over ")  the  age  of  fourteen  years. 

And  whereas,  in  a  certain  suit  in  the  Court  of  Chancery  of 
the  State  of  New  Jersey  for  partition,  wherein  is  com- 

(a)  It  is  tlie  duty  of  the  court  to  of  this  state  as  the  court  shall  judge 

require  of  the  guardian  of  any  person  to  be  sufficient,  for  the  benefit  of  such 

under  the   age  of  twenty-one  years,  minor,   conditioned    for   the   faithful 

entitled  to  a  proportion  of  the  moneys  discharge  of  the  trust  committed  to 

arising  from   any   sale   in   partition,  such   guardian.     Bev.,  "Partition,"   ^ 

such  security  by  bond  to  the  Ordinary  23. 


PARTITION.  431 

plainant,  and  and  others  are  defendants,  an  order  was 

made,  bearing  date,  &c,,  directing  ,  one  of  the  special 

masters  of  said  Court  of  Chancery,  to  make  distribution  of  the 
proceeds  of  sale  of  the  real  estate  mentioned  in  said  suit,  and  it 
was  thereby,  amongst  other  things,  ordered,  {here  insert  that  part 
of  the  order  directing  payment  to  the  guardian.) 

And  whereas,  the  part  of  the  residue  of  the  proceeds 

of  the  said  sale  so  ordered  to  be  paid  by  the  said  master  as  afore- 
said, is  the  sum  of  dollars ;  which  said  sum  of  money  has 
been  paid  to  the  said  {guardian,)  as  such  guardian  as  aforesaid, 
pursuant  to  said  order  : 

Now,  the  condition  of  this  obligation  is  such,  that  if  the  said 
{guardian)  shall  faithfully  discharge  his  trust  as  such  guardian 
in  respect  of  said  money  so  paid  to  him,  and  shall  duly  account, 
according  to  law,  for  the  same,  then  the  above  obligation  to  be 
void,  or  else  to  be  and  remain  in  full  force  and  virtue, 

[L.  S.] 

Sealed  and  delivered  [l.  s.] 

in  the  presence  of — 

Receipt  taken  by  the  master  for  distributive  share. 

{Title  of  cause.) 
Received  {place  and  date)  of  ,  one  of  the  special  masters 

in  chancery  of  New  Jersey,  directed  by  a  decree  of  the  Chan- 
cellor to  make  sale  of  the  lands  and  premises  in  the  proceedings 
in  said  cause  mentioned,  and  who  sold  the  said  premises  by  virtue 
of  said  decree,  the  sum  of  dollars,  being  *  my  proportion 

of  the  net  proceeds  of  the  said  sale,  agreeably  to  my  right  and 
title  of,  in  and  to  the  said  premises.  (Signed,  witnessed,  &c.) 
( Or,  if  a  share  be  ordered  to  be  paid  to  a  general  guardian  of  an 
infant,  after  *,  "the  proportion  of  the  net  proceeds  of  said  sale, 
of  and  belonging  to  ,  an  infant,  to  whom  I  have  been 

appointed  the  general  guardian,  according  to  the  right  and  title 
in  and  to  the  said  premises  so  sold  as  aforesaid.") 

Refunding  bond  for  share  of  party  absent  or  pre- 
sumed to  be  dead  in  partition  suit.(a)    Know  all  men 

(a)  Wliere  the  residence  of  any  jier-  or  real  estate  sold  by  virtue  of  any 
son  interested  in  the  proceeds  of  lands       proceedings  in  partition  in  this  state, 


432 


FORMS   OF   PLEADINGS. 


by  these  presents,  that  we,  {principal  and  sureties,)  of,  &c,,  are 
held  and  firmly    bound    unto  ,    clerk   of  the  Court  of 

Chancery  of  New  Jersey,  in  the  sum  of  dollars,  to  be 

paid  to  the  said  ,  clerk  as  aforesaid,  or  his  successors  in 

office,  to  which  payment  we  bind  ourselves,  our  and  each  of 
our  heirs,  executors  and  administrators,  jointly  and  severally, 
firmly  by  these  presents.     Sealed  with  our   seals.     Dated  the 

day  of  ,  eighteen  hundred  and 

Whereas,  by  a  decree  of  the  said  court,  made  in  a  certain 
cause   therein    depending,  wherein  is   complainant,  and 

and  others  are  defendants,  and  bearing  date  on  the,  &c.. 


is  unknown,  or,  where  it  is  not  known 
whether  a  person  who,  if  living,  would 
be  interested  in  such  proceeds  of  the 
sale  of  l»nds  or  real  estate,  is  living  or 
not,  it  shall  be  lawful  for  the  court 
having  the  power,  by  order  or  decree, 
of  distributing  such  proceeds  to  order 
the  share  or  interest  of  any  such  per- 
son to  be  invested  in  bonds  of  this 
state,  or  of  any  city  or  county  of  this 
state  authorized  by  law  to  issue  bonds, 
or  bonds  secured  by  mortgage  on  real 
estate,  or  in  such  public  or  other  secu- 
rities as  the  court  may  approve,  and 
to  direct  and  control  the  custody  of 
the  securities  which  may  be  taken 
from  time  to  time,  for  any  investment 
ordered ;  and  also,  either  before  or 
after  an  investment  is  ordered,  at  such 
time  as  the  court  may  determine,  to 
order  or  decree  a  distribution  of  the 
share  or  interest  which  any  such  per- 
son, if  living,  would  be  entitled  to, 
among  and  to  the  person  or  persons 
interested  in  such  proceeds,  as  are 
known  to  be  living,  in  proportion  to 
their  interest  therein  respectively,  or 
to  and  among  the  person  or  persons 
who  are,  if  it  shall  appear  such  per- 
son has  died,  entitled,  by  law,  to  re- 
ceive the  same  as  an  heir  or  heirs  ; 
and  the  court  may  fix  the  time  when 
it  shall  be  supposed  or  deemed  such 


person  died,  and  may  order  refunding 
bonds  to  be  given,  by  or  on  behalf  of 
any  of  the  persons  to  whom  any  part 
of  such  share  shall  be  distributed,  to 
the  clerk  of  the  court  and  his  succes- 
sors in  office,  in  such  sum  and  witk 
such  condition,  with  or  without  secu- 
rity, as  the  court  may  direct.  Rev., 
"Partition,"  |  34.  It  shall  be  lawful 
for  said  court  to  control  the  custody  of 
said  refunding  bonds,  and  on  petition 
of  any  person  or  persons  who  shall 
make  it  appear,  to  the  satisfaction  of 
said  court,  that  the  petitioner  or  peti- 
tioners is  or  are  entitled  to  the  money 
secured  by  said  refunding  bond  or 
bonds  or  any  part  thereof,  to  order 
that  the  money  secured  thereby  be 
collected,  for  the  benefit  of  such 
person,  by  and  in  the  name  of  the 
clerk  of  the  court,  who  is  hereby 
authorized  to  sue  thereon,  and  in  case 
of  his  death  pending  a  suit  thereon, 
the  same  may  be  continued  in  the 
name  of  his  successor,  and  said  court 
may  dispose  of  the  money  collected 
thereon,  by  order  or  decree,  as  to  said 
court  may  seem  just  and  right ;  and 
the  said  court  may  order  and  decree 
the  payment  of  such  costs  and  ex- 
penses out  of  said  share  or  interest  at 
any  time,  as  the  court  may  deem 
necessary  and  expedient.     Id.,  ^  35. , 


PARTITION.  433 

one  was  declared  to  be  entitled  to  {state  the  share)  of  cer- 

tain lands  and  premises  therein  described ;  and  whereas,  the 
share  of  proceeds  of  the  sale  of  said  lands  was  paid  into  the  said 
court  by  the  master  who  made  sale  of  said  lands  by  virtue  of 
said  decree ;  and  whereas,  and  ,  parties  to  said  suit, 

filed  their  petition  in  said  court  praying  the  distribution  to  them 
of  said  share  of  said  ;  and  whereas,  by  an  order  of  said 

court,  made  on  the  day  of  ,  &c.,  it  was  adjudged,  that 

the  said  be  deemed  to  have  died  in  the  month  of  , 

eighteen  hundred  and  ,  and  that  the  clerk  of  the  said 

court,  after  deducting  his  lawful  commissions  upon  the  moneys 
so  deposited  with  him,  as  the  share  of  as  aforesaid,  pay  to 

{the  petitioners,  naming  them,)  each  respectively,  the  part 

of  said  moneys,  with  the  interest  thereon  allowed  by  the  rules  of 
said  court,  upon  their  severally  giving  to  the  said  clerk,  and 
his  successors  in  office,  a  refunding  bond,  [with  security,  to  be 
approved  by  ,  a  special  master  of  said  court,]  in  the  sum 

of  dollars,  conditioned  for  the   payment   by   the   said 

petitioner  giving  said  bond  to  the  said  of  the  money  so 

received  by  him,  with  lawful  interest,  if  he  shall  prove  to  be 
alive,  and  return  and  demand  the  same ;  and  whereas,  the  share 
or  portion  of  said  moneys  received  by  the  said  {the  obligor,) 
amounts  to  the  sum  of  dollars : 

Now,  the  condition  of  this  obligation  is  such,  that  if  the  said 
{the  obligor,)  his  heirs,  executors,  administrators  or  assigns,  shall 
pay  to  the  said  {the  absent  or  dead  party,)  if  he  be  living,  or  to 
his  heirs  or  legal  representatives,  if  he  be  dead,  the  sum  of 
dollars,  with  lawful  interest  thereon  from  the  date  of  these 
presents,  then   the   above   obligation   to  be  void,  otherwise  to 

remain  in  full  force  and  virtue.  r        -, 

[l.  s.] 

Signed,  sealed  and  delivered  in  presence  of —  [l.  s.] 

Release  of  distributee  and  wife  to  master. 

Know  all  men  by  these  presents,  that  whereas  ,  by 

virtue  of  a  certain  order  of  the  Court  of  Chancery  of  the  State 
of  New  Jersey,  made  in  the  cause  wherein  is  complainant, 

4ind  and  others  are  defendants,  filed  on  the  day  of 

2c 


434  FORMS   OF   PLEADINGS. 

,  eighteen  hundred  and  ,  was  entitled  to  a  certain 

distributive  share  of  the  net  proceeds  of  the  sale  of  the  lands 
and  real  estate  sold  by  ,  special  master,  under  and  by 

virtue  of  the  decree  of  the  Chancellor  entered  in  said  cause ;  and 
whereas,  such  distributive  share  has  been  paid  to  :  Now, 

therefore,  I  do  hereby  acknowledge  that  I  have  received  from 
said  ,  special  master,  the  sum  of  dollars  and 

cents,  in  full  for  my  distributive  share  as  aforesaid ;  and  I,  the 
said  ,  wife  of  said  ,  do  hereby  signify  my  consent 

to  such  payment  to  said  ,  and  thereof  and  therefrom  by 

these  presents  we  do  fully,  clearly  and  absolutely  acquit,  release 
and  forever  discharge  the  said  ,  special  master,  his  heirs, 

executors  and  administrators. 

Witness  our  hands  and  seals  this  day  of  ,  eighteen 

hundred  and 

Signed,  sealed  and  delivered  in  presence  of — 

State  of  New  Jersey,    \ 

county  of  ,    J 

Be  it  remembered,  that  on  this  day  of  ,  eighteen 

hundred  and  ,  before  me,  ,  personally  appeared 

and  ,  who,  I  am  satisfied,  are  the  persons  named  in  and  who 

have  executed  the  foregoing  release ;  and  I,  having  first  made 
known  to  the  contents  thereof,  acknowledged  that 

signed,  sealed  and  delivered  the  same  as  voluntary 

act  and  deed,  for  the  uses  and  purposes  therein  expressed. 

And  the  said  ,  wife  of  said  ,  being  by  me  pri- 

vately examined  separate  and  apart  from  her  husband,  did 
further  acknowledge  that  she  signed,  sealed  and  delivered  the 
same  as  her  voluntary  act  and  deed,  freely,  without  any  fear, 
threats  or  compulsion  of  or  from  her  said  husband. 

Master's  statement. 

{Title  of  cause.) 
In    pursuance   of    an   order   of    distribution    made   in    the 
above-entitled  cause,  bearing  date  on  the  day  of  , 

eighteen  hundred  and  ,  whereby  it  was  ordered  that  the 

said  master  file  with  the  clerk  of  this  court  a  statement  of  his 
fees,  disbursements  and  commissions  under  these  proceedings. 


PARTITION.  435 

together  with  a  statement  or  report  of  the  distribution  and  dis- 
position of  the  moneys  that  have  come  to  his  hands  as  the  pro- 
ceeds of  said  sale,  I  do  hereby  report  and  make  statement  of  my 
disbursements  and  of  the  distribution  of  said  moneys  as  follows : 

Paid  ,  solicitor,  taxed  costs,  including 

counsel  fee $ 

Advertising  sale 

Copies  of  advertisement  for  printers 

Paid  printers'  fees,  advertising  sale 

Selling 

Drawing  deed 

Master's  report  of  sale  and  affidavit 

Master's  commissions  on  $  

Statement 

Distribution  of  residue  as  follows  {or  as  the  case 
may  be) — 

To  F.  L.  M.,  G.  A.  M.  and  E.  J.  R.,  eleven-twelfths 
thereof 

To  F.  L.  M.,  G.  A.  M.  and  E.  J.  R.,  as  grantees  of 
W.  A.  M.,  A.  E.  B.  and  E.  P.  M.,  of  said  prem- 
ises three  seventy- second  parts 

Deposited  in  court,  as  directed    by  said  order  of 
distribution,  in  the  names  of  the  following  parties — 

For  N.  V.  8 $ 

For  L.  M.  S 

For  F.  M.  S 

For  A.  L.  S 

For  R.  F.  S 

ForF.  W.  M 

For  H.  L.  M 

For  F.  G.  M 

For  M.  F.  B 

For  A.  M.  B '.. 

Total  disbursements $ 

All  which  is  respectfully  submitted  this  day  of  , 

eighteen  hundred  and  .  {Signature  of  master.) 


436  FORMS   OF   PLEADINGS. 

Master's  report  in  partition  suit  that  premises 
can  be  partitioned. 

{Title  of  cause.) 
In  pursuance  of  an  order  of  this  court,  made  in  the  above 
cause,  bearing  date  on  the  day  of  ,  eighteen  hundred 

and  ,  whereby  it  was  ordered,  that  it  be  referred  to  the 

subscriber,  one  of  the  special  masters  of  this  court,  to  ascertain 
and  report  the  right,  title  and  interest  of  the  respective  parties 
in  the  premises  mentioned  and  described  in  the  bill  of  com- 
plaint in  this  cause;  and  also  to  report  to  this  court  whether  the 
said  premises  are  so  situate  that  a  partition  thereof  can  be  made 
without  great  prejudice  to  the  owners;  and  in  case  such  partition 
cannot  be  made,  then  to  ascertain  and  report  whether,  in  case  of 
a  sale  of  said  premises,  under  all  the  circumstances  of  the  case, 
having  regard  to  the  interest  of  all  the  parties,  the  estate  and 
interest  of  ,  widow  of  ,  deceased,  (if  any  she  have,) 

as  tenant  in  dower  in  said  premises,  ought  to  be  excepted  from 
the  sale  thereof,  or  whether  the  same  should  be  sold,  and  that  he 
make  his  report  to  the  Chancellor  on  the  (date,)  at  ten  o'clock  in 
the  forenoon,  at  the  state- house,  in  Trenton,  I,  ,  one  of  the 

special  masters  of  this  court,  do  hereby  report  to  his  Honor  the 
Chancellor,  that  I  have  been  attended  by  the  solicitor  of  the 
complainants,  and  that  in  his  presence  I  have  examined  the 
matters  referred  to  me  by  the  said  order,  and  do  find  and  report, 
that  the  rights  and  interests  of  the  respective  parties  in  the 
premises  whereof  partition  is  sought  by  the  said  bill  of  com- 
plaint, are  as  follows,  to  wit : 

1.  The  said  ,  widow  of  ,  deceased,  is  entitled  to 
her  dower  in  the  whole  of  said  premises. 

2.  The  complainant,  ,  is  seized  in  fee  of  one  undivided 

part  of  said  premises,  subject  to  the  aforesaid  right  of 
dower  of  the  said 

3.  The  defendants,  ,  are  each  respectively  seized  in  fee 
of  one  equal  undivided  part  of  said  premises,  subject  to 
the  right  of  dower  of  the  said  as  aforesaid. 

And  I  do  further  certify  and  report,  that  the  said  premises 
are,  in  my  opinion,  so  situate  that  a  partition  or  division  thereof 
can  be  made  among  the  parties  interested  therein  without  great 


PARTITION.  437 

prejudice  to  the  owners  thereof,  and  that  my  reasons  for  this 
opinion  are,  that  although  consisting  of  a  farm,  and  hitherto 
used  for  agricultural  purposes  only,  they  are  in  the  immediate 
vicinity  of  a  large  and  growing  town,  and  are  valuable  now  and 
prospectively  as  town  lots,  and  are  fast  increasing  in  value;  and 
that  when  divided  among  the  parties  in  interest,  the  shares  will 
be  readily  divisible  into  town  lots  of  considerable  present  and 
rapidly-increasing  value,  as  appears  from  the  depositions  hereto 
annexed.  All  which,  as  directed  in  and  by  the  said  order,  I 
hereby  report  to  his  Honor  the  Chancellor,  at  the  state-house, 
in  Trenton,  on  this  day  of  ,  in  the  year  aforesaid. 

Decree  for  partition  and  order  appointing  commis- 
sioners, /rr-ii     r  \ 
[Title  of  cause.) 

This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  in  the  presence  of  ,  clerk  of  this 

court,  guardian  ad  litem  of  the  infant  defendants,  ,  the 

bill  of  complaint  having  been  heretofore  taken  as  confessed 
against  the  other  defendants  in  the  cause,  and  upon  reading  a 
report  on  file  in  the  cause,  bearing  date  on  the  day  of 

instant,  made  by  ,  one  of  the  special  masters  of 

this  court,  from  which,  and  from  the  testimony  accompanying 
it,  it  appears  satisfactorily  to  the  Chancellor  that  the  premises  in 
the  bill  of  complaint  mentioned,  are  so  situated  that  a  partition 
or  division  thereof  can  be  made  among  the  parties  interested 
therein  without  great  prejudice  to  the  owners  thereof  and  that 
the  rights  and  interests  of  the  said  parties  in  the  said  premises 
are  as  is  hereinafter  declared  and  set  forth,  and  no  cause  having 
been  shown  or  appearing  against  confirming  the  said  report : 
It  is  thereupon,  on  this  day  of  ,  eighteen  hundred 

and  ,  by  his  Honor  ,  Chancellor  of  the  State  of 

New  Jersey,  ordered,  adjudged  and  decreed,  and  the  said  Chan- 
cellor does,  by  virtue  of  the  power  and  authority  of  this  court, 
hereby  order,  adjudge  and  decree,  that  the  said  report  of  the 
said  special  master  do  stand  ratified  and  confirmed  ;  and  that  the 
parties,  complainant  and  defendants,  in  this  suit,  are  seized  of 
and  entitled  to  the  lands  and  premises  in  the  bill  of  complaint 
described,  and  their  respective  rights  and  interests  therein  are 


438  FOEMS   OF   PLEADINGS. 

hereby  adjudged  and  decreed  to  be  as  follows,  to  wit,  the  defend- 
ant, ,  is  entitled  to  her  dower  in  the  whole  of  said  prem- 
ises ;  the  complainant,  ,  is  seized  in  fee  of  and  entitled  to 
the  one  undivided  part  of  the  said  premises,  subject  to  the 
aforesaid  right  of  dower ;  and  the  several  defendants,  ,  are 
each  seized  of  and  entitled  to  the  one  equal  undivided 
part  of  said  premises,  subject  to  the  aforesaid  right  of  dower. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  partition 
be  made  of  the  said  lands  and  premises  among  the  said  parties, 
complainant  and  defendants,  according  to  their  respective  rights 
and  interests  therein,  as  the  same  were  reported  by  the  said 
master,  and  have  been  hereby  adjudged  and  declared  by  this 
court;  and  that  and  and  ,  of  the  county  of 

,  be  and  they  are  hereby  appointed  commissioners  for  the 
purpose  of  making  such  partition,  and  that  a  commission  do 
issue  out  of  and  under  the  seal  of  this  court  for  that  purpose,  to 
be  directed  to  the  said  commissioners,  commanding  them  to  divide 
the  said  lands  and  premises  into  equal  parts  or  shares,  each  equal 
in  value  to  the  other,  quantity  and  quality  being  relatively  con- 
sidered, and  that  they  allot  one  of  the  parts  or  shares  unto  the 
said  complainant,  ;  and  that  they  allot  one  of  the  said 

parts  or  shares  to  each  of  the  said  defendants,  ,  to  be  held 

and  enjoyed  by  the  said  parties  respectively  in  severalty,  accord- 
ing to  their  respective  rights  and  interests  therein,  as  adjudged 
and  declared  by  this  decree,  subject,  however,  to  the  estate  of 
dower  of  the  said  therein ;  and  that  they  designate  the 

parts  or  shares  so  allotted  to  each  of  the  said  parties,  and  the 
boundaries  thereof,  by  sufficient  descriptions  and  monuments. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  in  case 
partition  of  said  premises  cannot  be  made  with  perfect  equality 
among  the  said  parties  according  to  their  respective  rights  and 
interests,  unless  compensation  be  made  by  one  or  more  of  said 
parties  to  the  other  or  others  of  them,  for,  and  to  secure  equality 
of  partition,  then,  and  in  that  case,  the  said  commissioners  may 
ascertain  and  report  to  this  court  the  proper  compensation  which 
ought  to  be  made  for  equality  of  partition,  and  by  whom  of  the 
parties  the  same  should  be  paid,  and  to  whom  the  same  ought 


PARTITION.  439 

to  be  allowed  ;(a)  and  that  the  said  commissioners  be  authorized 
to  employ  a  surveyor,  and  cause  all  necessary  maps  and  surveys 
to  be  made;  and  that  all  the  parties  in  the  cause  do  produce  and 
leave  with  the  said  commissioners,  for  such  time  as  said  commis- 
fiioners  shall  deem  reasonable,  all  deeds,  writings,  surveys  and 
maps  in  their  possession  or  control  relating  to  the  said  premises ; 
and  that  the  said  commissioners  examine  witnesses  concerning 
the  matters  entrusted  to  them,  as  they  shall  think  fit. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  each 
share  or  part  of  said  premises,  when  allotted  as  aforesaid,  shall 
be  charged  with  a  ratable  proportion  of  the  costs,  charges  and 
expenses  of  this  suit. 

Commission  in  partition.  New  Jersey,  to  wit — The 
State  of  New  Jersey  to  and  and  ,  of  the 

county  of  ,  in  said  state — Greeting: 

Whereas,  on   the  day   of  ,  eighteen   hundred 

and  ,  by  a  certain  decree  made  in  the  Court  of 

[l.  s.]     Chancery  of  New  Jersey,  before  the  Chancellor,  at  Tren- 
ton, in  a  certain  cause  therein  depending,  wherein 
and  ,  his  wife,  are  complainants,  and  are  defendants, 

it  was  ordered,  adjudged  and  decreed,  that  a  partition  be  made 
of  a  certain  tract  of  land  and  premises  in  the  bill  of  complaint 
in  the  said  cause  particularly  set  forth  and  described,  that  is  to 
say — {here  set  forth  the  description  of  said  tract,  as  in  the  bill  of 
complaint) — into  equal  parts  or  shares,  each  equal  in  value 

to  the  other,  quantity  and  quality  being  relatively  considered ; 
and  that  for  that  purpose  a  commission  should  issue  out  of  and 
under  the  seal  of  our  said  court,  directed  to  the  said  and 

and  ,  as  commissioners,  commanding  them  to  make 

such  partition  or  division  as  aforesaid ;  and  that  they  should  allot 
one  of  the  said  parts  or  shares  unto  the  said  complainant,  ; 

(a)  Each  party  must  have  his  share  1   P.   Wms.  447  ;   Brookfield  v.    Wil- 

in  value,  which  is  all  that  is  required.  Hams,  1  Gr.  Gh.  345 ;  Wilson  v.  E.  B. 

To  make  the  value  equal,  one  party  B.  Co.,  62  Me.  112;  Freeman  on  Par- 

may  be  required  under,  certain   cir-  tition,  ^  507.     The  owelty  to  be  paid 

cumstances,  to  pay  money  on  his  share  by  a  party  is  necessarily  quite  limited 

±0   those    who    receive    one    of    less  in  amount. 
value.     Eafl  of  Clarendon  v.  Hornby, 


440  FOEMS   OF   PLEADIKGS. 

and  allot  one  of  said  parts  or  shares  to  each  of  the  defendants^ 
,  to  be  held  and  enjoyed  by  the  said  parties  respectively 
in  severalty,  according  to  their  respective  rights  and  interests 
therein,  as  adjudged  and  declared  by  said  decree,  subject,  how- 
ever, to  the  right  of  dower  of  the  said  defendant,  , 
therein. 

Therefore  know  ye,  that  we  have,  pursuant  to  the  said  decree, 
fully  authorized  and  empowered  you  to  go  to,  enter  upon,  walk 
over  and  survey  the  said  tract  of  land  and  premises,  and  the 
same  to  separate,  divide  and  allot,  according  to  the  decree  afore- 
said ;  and  for  the  better  making  of  such  partition  and  allotment, 
we  do  hereby  give  unto  you  full  power  and  authority  to  examine 
separately  and  apart,  upon  their  oaths  or  affirmations,  upon 
interrogatories  or  otherwise,  as  you  shall  think  fit,  such  witnesses 
as  shall  be  produced  to  you  by  the  said  parties,  or  any  of  them. 
And  we  do  hereby  command  you  that  you  do,  at  certain  proper 
and  convenient  days  and  hours,  to  be  appointed  by  you  for  that 
purpose,  go  to,  enter  upon,  walk  over  and  survey  the  said  tract 
of  land,  and  cause  the  said  witnesses  to  come  before  you,  and 
examine  each  of  them  apart  upon  interrogatories  to  be  exhibited 
before  you  by  the  said  parties,  or  any  of  them,  or  otherwise,  as 
you  shall  think  fit,  upon  their  respective  oaths  or  affirmations 
first  taken  before  you,  and  to  reduce  such  examinations  to  writ- 
ing, together  with  the  questions  asked  by  you,  other  than  the 
interrogatories  aforesaid;  and  that  you  do  separate  and  divide 
the  said  tract  of  land  into  equal  parts,  each  equal  in  value 

to  the  other,  quantity  and  quality  being  relatively  considered, 
and  do  allot  one  of  the  said  parts  unto  the  complainant,  ; 

and  allot  one  of  the  said  parts  unto  each  of  the  said  defendants, 
,  to  be  held  and  enjoyed  by  the  said  parties  respectively 
in  severalty,  according  to  their  respective  rights  and  interests 
therein,  as  adjudged  and  declared  by  the  said  decree,  subject, 
however,  to  the  right  of  dower  of  the  said  therein;  and 

that  you  designate  the  parts  so  allotted  to  each  of  the  said  parties, 
and  the  boundaries  thereof,  by  sufficient  descriptions  and  monu- 
ments, and  employ  a  surveyor,  and  cause  all  necessary  maps  and 
surveys  to  be  made,  and  cause  all  the  parties  in  the  cause  to 
produce  and  leave  with  you,  for  such  time  as  you  may  think 


PARTITION.  441 

reasonable,  all  deeds,  writings,  surveys  or  maps  relating  to  the 
said  premises  in  their  possession  or  control;  and  in  case  such 
partition  as  aforesaid  of  said  premises  cannot  be  made  with  per- 
fect equality  among  the  said  parties,  according  to  their  respective 
rights  and  interests  therein,  unless  compensation  be  made  by  one 
or  more  of  them  to  the  other  or  others  of  them  for  equality  of 
partition,  then  that  you  do  ascertain  and  report  the  proper  com- 
pensation which  should  be  made  to  secure  equality  in  the  parti- 
tion, and  by  whom  of  the  said  parties  the  same  should  be  paid, 
and  to  whom  of  them  the  same  ought  to  be  allowed. 

And  when  you  shall  have  so  done,  you  are  to  certify  and 
return  into  our  Court  of  Chancery,  at  Trenton,  without  delay, 
your  acts  and  proceedings  in  the  premises,  by  your  certificate, 
together  with  the  said  interrogatories,  questions  and  examina- 
tions, distinctly  and  plainly  written,  and  the  maps  made  by  you, 
under  your  seals,  together  with  this  writ. 

Witness  ,  our  Chancellor,  at  Trenton,  the  day  of 

,  eighteen  hundred  and 

Clerk. 
Solicitor. 

Commissioners'  oaths  in  partition.  New  Jersey,  ss. — 
Be  it  known,  that  on  the  day  of  ,  eighteen  hundred 

and  ,  before  the  subscriber,  one  of  the  masters  of  the 

Court  of  Chancery  of  the  State  of  New  Jersey,  personally 
appeared  and  and  ,  the  commissioners  named  in 

the  within  commission,  and  being  by  me  duly  sworn  according  to 
law,  they  did  each  severally  depose  and  say,  that  he  will  honestly, 
faithfully  and  impartially  make  the  partition  in  said  commis- 
sion directed,  and  execute  the  trust  and  perform  the  duties  and 
services  required  of  him  by  the  said  commission,  to  the  best  of 
his  skill,  knowledge  and  judgment. 

Sworn  and  subscribed  before  me, 
the  day  and  year  above  written. 


442 


FORMS   OF   PLEADINGS. 


Commissioners'  return  in  partition.(a) 

{Title  of  cause.) 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

In  pursuance  of  a  certain  commission,  issued  out  of  and  under 
the  seal  of  the  Court  of  Chancery  of  the  State  of  New  Jersey, 
dated  the  day  of  ,  eighteen  hundred  and  , 

in  the  above-stated  cause,  appointing  us,  the  subscribers,  com- 


(a)  Equal  partition  of  each  parcel 
among  all  the  owners  is  not  required. 
And  a  partition  so  made  witliout  neces- 
sity, and  practically  destructive  of  the 
value  of  the  parcel  divided,  will  be  set 
aside,  haulenbeck  v,  Cronkrighf,  11  C. 
E.  Gr.  159.  In  equity  there  is  no 
necessity  that  a  partition  should  be  so 
made  as  to  give  each  party  a  share  in 
every  part  of  the  property.  Each 
party  must  have  his  share  in  value, 
which  is  all  that  is  required.  Brook- 
, field  v.  Williams,  1  Gr.  Ch.  341.  Under 
certain  circumstances,  to  make  the 
value  of  the  several  shares  equal,  one 
, party  may  be  required  to  pay  money 
on  his  share  to  those  who  receive  a 
share  of  less  value.  Ibid.  And  an 
equitable  partition  may  be  made  so  as 
to  assign  that  portion  of  the  land  on 
which  the  improvements  are  placed  to 
the  person  who  has  made  them.  Ibid. 
Hall  V.  Piddock,  6  C.  E.  Gr.  311.  A 
share  may  be  subdivided  on  partition, 
and  the  costs  thereof  will  be  charged 
on  that  share.  Coles  v.  Coles,  2  Beas. 
365.  To  justify  the  setting  aside  of  a 
partition  of  real  estate,  on  the  ground 
of  a  mistake  in  judgment  on  the  part 
of  the  commissioners,  the  error  must 
be  a  serious  one  and  the  evidence  of 
it  too  plain  to  be  mistaken.  Thompson's 
Case,  2  Gr.  Ch.  637 ;  Bentley  v.  Long 
Dock  Co.,  1  McCart.  480 ;  see  Hay  v 
Estell,  4  C.  E.  Gr.  133.  If  the  evi- 
dence  be   doubtful  or   contradictory. 


the  report  will  be  sustained  Ibid. 
A  report  of  commissioners  in  parti- 
tion will  not  be  disturbed,  save  for 
causes  which  at  law  would  allow  of  a 
new  trial.  Livingston  v.  Clarkson,  4 
Edw.  Ch.  596.  Exceptions  will  not 
lie  to  the  return  of  commissioners,  in 
a  suit  for  partition.  The  correct 
practice  in  such  cases  is  by  motion  to 
suppress  the  return.  Hay  v.  Estell, 
supra.  On  motion  to  quash  the  par- 
tition, the  question  to  be  considered 
by  the  court  is,  whether  the  inequality 
amounts  to  more  than  what  would 
arise  from  differences  in  judgment 
between  men  of  discretion  in  valuing 
the  same  property.  Ibid.  It  was 
held  that  wlfere  a  share  of  premises 
partitioned  is  set  off  to  a  lunatic  or  to 
an  habitual  drunkard,  the  title  is 
vested  in  him  and  not  in  his  com- 
mittee. Underhill  v.  Jackson,  1  Barb. 
Ch.  73.  If  there  be,  at  the  time  of 
making  partition,  a  lien  upon  the 
undivided  estate  of  any  owner,  by 
judgment,  decree,  mortgage  or  other- 
wise, such  lien  shall  thereafter  be  a 
lien  only  on  the  share  assigned  or 
allotted  to  such  owner;  and  such  share 
shall  be  iirtt  charged  with  its  just  pro- 
portion of  the  costs  of  the  partition  in 
preference  to  any  such  lien.-  Bev., 
'^Partition,"  'i  36.  And  a  part  of  the 
land  may  be  divided  and  the  residue 
sold.     Bev.,  ^'Partition,"  ^  37. 


PARTITION.  443 

missioners  to  separate,  divide  and  allot  a  certain  tract  of  land 
and  premises,  in  the  said  commission  particularly  set  forth  and 
described,  into  equal  parts,  each  equal  in  value  to  the  other, 

quantity  and  quality  relatively  considered,  and  allot  one  of  said 
parts  unto  the  said  complainant,  ;  and  allot  one  of  said 

parts  to  each  of  the  defendants,  ,  to  be  held  and  enjoyed 

by  the  said  parties  respectively  in  severalty,  according  to  their 
respective  rights  and  interests  therein,  as  adjudged  and  declared 
by  the  decree  in  said  cause,  subject,  however,  to  the  right  of 
dower  of  therein ;  and  to  designate  the  parts  so  allotted 

to  each  of  the  said  parties,  and  the  boundaries  thereof,  by  suffi- 
cient descriptions  and  monuments:  we  do  hereby  report  to  the 
said  court,  that  having  taken  upon  us  the  burthen  of  the  said 
commission  and  appointment,  and  having  been  duly  sworn 
according  to  law,  we  did,  after  due  notice  to  the  said  parties, 
enter  upon,  walk  over  and  survey  the  said  tract  of  land,  and 
did  separate  and  divide  the  same  into  equal  shares,  (with  the 
owelty  hereinafter  mentioned,)  and  did  make  division  thereof 
by  metes  and  bounds,  having  regard  to  the  relative  quantity  and 
quality  of  the  land  in  each  share;  and  that,  for  the  better 
understanding  of  the  shape  and  situation  of  said  premises,  and 
of  the  manner  in  which  such  partition  has  been  made  by  us,  we 
have  caused  to  be  made  a  map  thereof,  which  is  hereto  annexed, 
and  forms  part  of  this  report,  and  have  marked  the  several 
shares  delineated  on  said  map  by  numbers,  from  to  , 

inclusive;  and  we  did  allot  one  share  of  said  tract,  being  the 
share  marked  No.  on  said  map,  to  the  complainant,  , 

which  said  share  No.  is  bounded  and  described  as  follows, 

to  wit,  {here  describe  the  premisis  comprised  in  this  share;)  and 
we  did  allot  to  the  defendant,  ,  one  share  of  said  tract  of 

land,  being  the  share  marked  No.  on  said  map,  which  said 

share  No.  is  bounded  and  described  as  follows,  to  wit,  &c., 

{allotting  all  the  shares;)  to  be  held  and  enjoyed  by  the  said 
respective  parties  in  severalty,  according  to  their  respective  rights 
and  interests  therein,  as  adjudged  and  declared  by  the  decree  in 
the  cause,  subject,  however,  to  the  right  of  dower  therein  of  the 
said 


444  FORMS   OF   PLEADINGS. 

And  we  do  further  report,  that  in  making  the  said  partition,, 
as  the  same  could  not  otherwise  be  made  equal  among  the  said 
parties,  and  for  the  purpose  of  equalizing  the  same,  we  did 
ascertain  the  compensation  which  ought  to  be  made  in  conse- 
quence of  the  difference  in  the  value  of  certain  of  the  aforesaid 
shares,  and  do  allot  and  direct  the  same  to  be  paid  as  follows, 
that  is  to  say,  that  the  said  complainant,  ,  to  whom  the 

share   marked   No.  on   said    map   was   allotted,  ought 

to  pay  the  sum  of  dollars,  to  equalize  the  said  parti- 

tion ;  and  we  do  allot  and  direct  that  the  said  sum  of 
dollars   be   paid   accordingly  by  said  complainant   to  the  said 
defendant,  ,  to  whom  the  share  marked  No.  on  said 

map  was  allotted. 

And  we  do  further  report,  that  we  have  annexed  to  this  our 
return  the  interrogatories  propounded  to,  and  the  examinations 
of  the  witnesses  produced  before  us  by  the  said  parties. 

And  we  do  further  report,  that  the  schedule  hereunto  annexed 
contains  a  statement  of  the  items  of  the  various  expenses  attend- 
ing the  execution  of  the  said  commission. 

In  witness  whereof,  we  have  hereunto  set  our  hands  and 
seals,(a)  this  day  of  ,  eighteen  hundred  and 

[L.  S.] 
[L.8] 
[L.  S.] 

Sehedute. 

We  certify  the  following  to  be  the  costs  and  expenses  of  exe- 
cutiog  the  foregoing  commission  :  {Here  follows  the  account  of 
expenses,  to  be  signed  by  the  commissioner s.){b) 

(a)  A  report  of  commissioners  must  sion.  See  rule  166.  The  statute  pro- 
be signed  by  all  the  commissioners ;  vides  for  the  supplying  of  vacancies, 
or  if  not  so  signed,  it  should  state  the  JRev.,  "Partition,"  I  20;  Braithtcaite's 
reason  of  the  omission.      Underhill  v.  Pr.  235. 

Jackson,  1  Barb.  Ch.  73.  There  does  (6)  The  court  may  make  such  fur- 
not  seem  to  be  any  authority  in  the  ther  reasonable  allowances  beyond  the 
New  Jersey  statutes  for  a  part  of  the  statutory  fees  and  expenses  as  may  be 
commissioners  to  act  in  the  commis-  judged  proper.  Eev.,  "Partition,"  I  45. 


PARTITION.  445 

Decree  confirming  partition. 

{Title  of  cause.) 
This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  in  the  presence  of  ,  clerk  of  this 

court,  and  guardian  ad  litem  of  the  infant  defendants  in  the 
cause,  the  only  defendants  who  have  appeared  therein,  and  upon 
reading  a  report  on  file  in  the  cause,  made  by  and  and 

,  commissioners  appointed  by  a  decree  of  this  court,  made 
in  this  cause,  to  make  a  partition  and  division  of  the  tract  of  land 
in  the  bill  of  complaint  in  the  cause  particularly  set  forth  and 
described,  by  which  report  it  appears  that  the  said  commissioners, 
having  first  been  duly  sworn  according  to  law,  and  having 
given  due  notice  to  the  said  several  parties,  did  enter  upon,  walk 
over  and  survey  the  said  tract  of  land  and  premises,  and  did 
proceed  to,  and  did  separate  and  divide  the  said  tract  into  equal 
parts  or  shares,  with  the  owelty  hereinafter  directed  to  be  paid, 
quantity  and  quality  relatively  considered,  and  did  allot  one  of 
said  shares,  being  the  share  marked  No.  on  the  map 

annexed  to  their  said  report,  and  forming  a  part  thereof,  and  now 
on  file  in  the  office  of  the  clerk  of  this  court,  to  the  complainant, 
,  which  said  share  is  bounded  and  described  as  follows, 
to  wit,  [here  describe  the  premises  in  this  share;)  and  did  allot 
one  of  said  shares,  being  the  share  marked  No.  on  said 

map,  to  the  defendant,  ,  which  said  share  is  bounded  and 

described  as  follows,  to  wit,  &c.,  {allotting  all  the  shares.)  And 
by  said  report  it  further  appears,  that  in  making  the  said  parti- 
tion, as  the  same  could  not  otherwise  be  made  equal  between  the 
said  parties,  and  for  the  purpose  of  equalizing  the  same,  the  said 
commissioners  did  ascertain  and  report  the  compensation  which 
ought  to  be  made  in  consequence  of  the  difference  in  value  of 
certain  of  said  shares,  and  did  allot  and  direct  that  the  said  com- 
plainant, ,  to  whom  the  said  share  marked  No.  on  said 
map  was  allotted,  should  pay  the  sum  of  dollars,  to  equalize 
the  said  partition,  and  that  the  said  sum  should  be  paid  to  the 
said  defendant,  ,  to  whom  the  share  marked  No.  on 
said  map  was  allotted;  and  it  appearing  that  a  copy  of  the  rule 
nisi  to  confirm  the  said  report  has  been  duly  served  upon  the 


446  FORMS   OF   PLEADINGS. 

defendants,  and  no  cause  having  been  shown  or  appearing  against 
confirming  the  said  report :  It  is  thereupon,  on  this  day  of 

,  eighteen  hundred  and  ,  by  his  Honor  , 

Chancellor  of  the  State  of  New  Jersey,  ordered,  adjudged  and 
decreed,  that  the  said  report  of  the  said  commissioners,  and  all 
the  matters  and  things  therein  contained,  do  stand  ratified  and 
confirmed;  and  that  the  said  complainant,  ,  do  have, hold, 

use,  occupy,  possess  and  enjoy,  in  severalty,  the  hereinbefore 
described  share  or  allotment  of  the  said  lands  and  premises,  dis- 
tinguished as  share  No.  1  on  the  map  accompanying  said  report, 
allotted  and  assigned  as  aforesaid  to  the  said  complainant;  and 
that  the  said  defendant,  ,  do  have,  hold,  use,  occupy, 

possess  and  enjoy,  in  severalty,  the  hereinbefore  described  share 
or  allotment  of  the  said  land  and  premises,  distinguished  as  share 
No.  on  the  said  map,  allotted  and  assigned  as  aforesaid  to 

the  said  defendant,  &c.,  {making  decree  as  to  all  the  shares;)  all 
of  said  shares,  however,  to  be  held  by  the  several  parties  subject 
to  the  right  of  dower  therein  of  the  said  ;  and  that  the 

said  partition,  so  as  aforesaid  made,  stand  and  be  held  firm,  valid 
and  effectual  forever. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the  sev- 
eral other  parties  to  this  suit  among  whom  partition  has  been 
made,  do  forthwith  mutually  release  to  each  other  by  deed,  in 
fee  simple,  the  parts  or  parcels  hereby  allotted  and  partitioned 
to  them  respectively,  and  that  in  executing  each  of  said  deeds, 
all  the  parties  to  this  suit  shall  join  except  the  party  to  whom 
such  deed  shall  be  executed,  and  his  or  her  wife  or  husband, (a) 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the  said 
complainant,  ,  do  pay  to  the  said  defendant,  ,  the 

sum  of  dollars,  in  full  of  the  compensation  to  be  made  to 

(a)  The  form  of  the  decree,  so  far  cree  thereon,  in  the  clerk's  office  of 
as  respects  the  direction  for  the  exe-  the  county  where  the  lands  lie,  as 
cuting  of  conveyances,  is  according  to  notice  of  the  title  of  the  parties  to  the 
the  English  practice,  by  which  the  partition.  From  the  opinion  of  Chan- 
parties  execute  mutual  conveyances  cellor  Kent,  in  Young  v.  Cooper,  3 
settled,  in  case  of  disagreement  as  to  John.  Ch.  295,  it  will  be  seen  that  the 
form  by  a  master.  The  practice  in  English  practice  would  have  been  fol- 
New  Jersey  has  been  also  to  record  lowed  in  that  case  in  the  absence  of  a. 
the  commissioners'  return,  or  the  de-  statute.    See  Rev ,  "  Chancery,"  I  63. 


DOWER   AND   CURTESY.  44T 

the  said  ,  in  the  premises  aforesaid ;  which  said  sum  of 

dollars  is  hereby  declared  to  be  a  specific  lien  upon  the 
share  of  the  said  ,  allotted  to  him  as  aforesaid.  * 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the 
costs  of  the  complainant  and  the  defendants  to  be  taxed  be 
apportioned  between  the  complainant  and  the  defendants,  , 

according  to  their  respective  interests  in  the  premises,  and  that 
the  amount  apportioned  to  each  person  be  a  lien  on  the  share  of 
such  person  until  paid,  and  that  the  person  to  whom  the  same 
is  payable  have  leave  to  apply  to  this  court  in  this  suit  for  aid 
in  collecting  the  same.(a) 

Or,  after  *,  "And  the  costs  of  the  complainant  are  hereby 
declared  to  be  a  lien  upon  the  shares  of  the  respective  defendants 
in  the  premises  in  "favor  of  said  complainant." 

In  the  case  of  infant  defendants,  in  respect  to  costs,  say,  "And 
it  is  further  ordered,  that  the  shares  of  the  costs  and  expenses 
due  from  the  shares  of  the  infant  defendants  respectively  be  and 
they  are  hereby  declared  to  be  liens  upon  their  respective  shares 
as  aforesaid,  and  payable  by  the  general  guardians  of  said  infant 
defendants  out  of  the  rents  and  profits  of  such  shares,  or  out  of 
any  other  moneys  that  may  come  to  the  hands  of  such  guardians 
belonging  to  the  said  infants  respectively." 


DOWER  AND  CURTESY. 

Election  between  gross  sum  and  interest  of  in- 
vestment. (6) 

{Title  of  cause.) 

I,  ,  being  entitled  to  dower  in  the  lands  sold  under  the 

proceedings  in  the  above  cause,  and  my  said  estate  having  been 

(a)  Btv ,  "Partition,"    |    33.     Fees  tlie  Chancellor,  in  his  discretion,  to 

for  searches  may  be  included  as  jiart  allow  a  counsel  fee  to  the  complain- 

of  the  taxable  costs.  Rev.  Sap.,'- Chan-  ant,  notwithstanding  an  appearance 

eery,"    §   18.      By   this   practice   the  or  answer  has  been  filed  by  a  defend- 

amount  thereof  must  be  established  ant.     Rev.  Sup.,  "  Chancery,"  'i  19. 
by  the  affidavit  of  the  complainant  (6)  Upon  sale  -being   made  of  the- 

or  his  solicitor :  and  it  is  lawful  for  real  estate  of  a  tenant  in  dower,  or  by 


448 


FORMS   OF   PLEADINGS. 


sold  and  conveyed  to  the  purchaser,  do  hereby  consent  and  elect 
to  receive  and  accept,  in  lieu  thereof,  *  such  sum  in  gross,  out  of 
the  proceeds  of  the  sale,  as  shall  be  approved  by  the  Chancellor, 
as  a  just  and  reasonable  satisfaction  for  the  same;  (or,  after  *, 
"  the  investment  of  such  sum  as  the  Chancellor  shall  deem  rea- 
sonable and  approve,  in  such  manner  that  the  interest  thereof  be 
paid  to  me  during  my  life.") 

Given  under  my  hand  this  day  of  ,  eighteen 

hundred  and 

{Signature.) 
Signed  in  presence  of — 

[Add  verification  of  signature.) 


the  curtesy  in  lands,  the  court  shall 
direct  the  payment  of  such  sum  in 
gross  out  of  the  proceeds  of  the  sale 
of  the  premises  to  the  person  entitled 
to  such  estate,  as  shall  be  deemed  a 
just  and  reasonable  satisfaction  for 
such  estate  or  interest,  and  which  the 
person  so  entitled  shall  consent,  in 
writing,  to  accept  in  lieu  thereof;  but 
in  case  no  such  consent  be  given  be- 
fore the  making  of  the  order  confirm- 
ing such  sale,  or  for  the  distribution 
of  the  proceeds  thereof,  then  the  court 
shall  ascertain  and  determine  what 
proportion  of  such  proceeds  will  be  a 
just  and  reasonable  sum  to  be  invested 
for  the  benefit  of  the  person  entitled 
to  such  estate  in  dower,  or  by  the  cur- 
tesy, and  shall  order  the  same  to  be 
put  at  interest  on  sufficient  security  of 
real  property,  or  invested  in  public 
stock  or  deposited  in  some  safe  and 
reliable  savings  institution,  by  order 
and  under  the  direction  and  control 
of  said  court,  for  the  benefit  of  the  par- 
ties entitled,  and  the  interest  thereon 
to  be  paid  to  them  as  the  same  may 
become  due,  as  compensation  for,  and 


in  lieu  of  the  said  estate  in  dower,  or 
by  the  curtesy  ;  and  at  the  decease  of 
the  person  entitled  to  the  same,  the 
principal  sum  shall  be  paid  to,  or 
distributed  among,  the  parties  entitled 
thereto.  Rev.,  "Sale  of  land,"  §  19. 
In  partition,  where  the  widow  con- 
sents to  take  a  gross  sum  in  lieu  of 
dower,  and  then  dies,  the  fact  of  her 
death  cannot  affect  the  valuation  to 
be  made  of  her  interest  in  the  lands. 
It  is  her  expectancy  which  is  to  be 
valued,  and  not  the  actual  value  of 
her  life  estate  as  it  has  turned  out  to 
be.  McLaucjidin  v.  McLaughlin,  7  C 
E.  Or.  505.  When  a  sale  is  made  un- 
der proceedings  in  partition,  the  dow- 
ress  is  entitled  to  a  just  and  reasona- 
ble satisfaction  out  of  the  estate.  This 
means  full  compensation  for  the  loss 
which  she  sustains  by  having  her 
estate  taken  from  her  by  the  decree  of 
the  court.  The  value  of  her  estate 
must  be  computed  from  the  use  and 
profits  she  was  entitled  to  derive  from 
it  if  not  sold.  Haulenbeck  v.  Cronk- 
right,  8  C.  E.  Gr.  407. 


DOWER   AND   CURTESY.  449 

Order  of  reference  as  to  dower. 

{Title  of  cause.) 
It  appearing  to  the  court  that  was  entitled  to  an  estate 

of  dower  in  the  lands  and  premises  sold  in  this  cause,  and  that  f 
due  notice  of  the  sale  of  said  lands,  free  and  discharged  from 
such  estate  in  dower,  has  been  given  to  her,  and  that  she  has,  by 
writing  signed  by  her,  and  filed  in  this  cause,  consented  to  accept, 
in  lieu  of  her  dower,  *  a  gross  sum  to  be  approved  by  the  Chan- 
cellor ;  {or,  after  *,  "  the  permanent  investment  of  a  reasonable 
sum  to  be  approved  by  the  Chancellor,  in  such  manner  that  the 
interest  thereof  shall  be  payable  to  her  during  her  life;"  or, 
after  '\,  "  she  has  given  no  consent  in  writing  to  accept  a  gross 
sum  in  lieu  of  said  estate : ")    It  is  thereupon,  on  this  day 

of  ,  ordered,  &c.,  that  it  be  referred  to  ,  one  of  the 

special  masters  of  this  court,  to  ascertain  and  report  what,  in  his 
opinion,  is  a  proper  sum  |  in  gross,  under  all  the  circumstances 
of  the  case,  to  be  paid  out  of  the  proceeds  of  said  sale,  to  said 
,  as  the  value  of  her  dower ;  and  to  that  end  he  is  to 
inquire  into  and  is  to  report  the  condition  of  her  health,  and 
whether  she  has  an  average  expectancy  of  life  {or,  in  case  of 
investment,  after  %,  "to  be  invested  for  the  benefit  of  the  said 
,  for  the  object  aforesaid.") 

Master's  report  on  sum  in  gross.(a) 
{Title  of  cause.) 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

I,  the  undersigned,  ,  one  of  the  special  masters  of  this 

court,  do  report  that,  in  pursuance  of  an  order  made  in  the 

(a)  In  ascertaining  the  proper  sum  the  circumstances  thereof,  is  a  reason- 
to  be  paid  in  gross  to  a  tenant  in  able  &um  to  be  paid  in  commutation, 
dower,  the  184th  and  185th  rules  of  SeeridellO;  Croiikright  y.H<mlenbecIr, 
the  ('ourt  of  Chancery  on  the  subject,  10  C.  E.  Gr.  513.  On  the  coming  in 
should  not  be  taken  as  an  absolute  of  the  report,  the  allowance  for  dower 
guide;  but  irrespective  of  the  result  will  be  inserted  in  the  order  of  distri- 
of  the  application  of  the  rule  to  the  bution  It  is  not  the  practice  to  enter 
case  in  hand,  the  court  should  deter-  a  special  order  confirming  the  master's 
mine  what,  in  the  case  in  hand,  under  report  as  to  dower. 

2d 


450  FOKMS   OF    PLEADINGS. 

above-entitled  cause,  bearing  date  on  the  day  of  , 

by  which  it  is  referred  to  me  to  ascertain  and  report  what  is  a 
proper  sum  in  gross  to  be  paid  out  of  the  proceeds  of  the  sale  in 
this  case,  to  ,  as  the  value  of  her  dower,  I  have  proceeded 

to  inquire  into  and  ascertain  the  same.  And  I  report,  that  the 
clear  yearly  income  which  the  said  could  realize  from 

said  lands,  if  owner  of  the  whole  for  life,  above  insurance, 
repairs  and  taxes,  is  the  sum  of  dollars,  and  in  such  cal- 

culation I  have  made  allowance  for  all  repairs  necessary  to  keep 
the  premises  in  as  good  condition  as  they  were  in  at  the  time 
of  the  sale,  including  the  renewal  of  any  part  of  the  buildings 
thereon  that  may,  by  ordinary  wear  and  tear,  decay  and  require 
renewal. 

And  I  further  report,  that  the  age  of  said  is 

years;  and  that  her  health  is  good,  and  she  has  the  average 
expectancy  of  life  at  her  age ;  and  that  the  value  of  such  dower, 
calculated  upon  the  basis  of  the  table  contained  in  the  rules  of 
this  court,  from  one-third  of  said  clear  income,  is  the  sum  of 
dollars. 

And  I  further  report,  that  the  value  of  said  dower,  calculated 
upon  the  basis  of  said  table,  from  the  net  proceeds  of  sale,  which 
are  dollars,  is  the  sum  of  dollars. 

And  I  further  report  that,  in  my  opinion,  the  proper  sum  in 
gross  to  be  paid  to  the  said  ,  ascertained  by  adding  to  the 

amount  calculated  from  the  clear  yearly  income  one-half  of  the 
excess  of  the  amount  calculated  from  the  net  proceeds  of  sale, 
over  the  amount  above  ascertained  from  the  clear  yearly  income, 
is  the  sum  of  dollars. 

And  I  further  report,  that  under  all  the  circumstances  of  the 
case,  and  with  due  regard  to  the  rights  of  all  parties  concerned, 
such  sum  is  a  just  and  reasonable  satisfaction  for  the  said  estate 
in  dower,  irrespective  of  the  application  of  the  above  rule  to 
the  case. 


DOWER   AND   CURTESY.  451 

Master's  report  on  amount  to  be  invested. 

[Title  of  cause.) 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

I,  the  undersigned,  ,  one  of  the  special  masters  of  this 

court,  do  report  that,  in  pursuance  of  an  order  made  in  the 
above- entitled  cause,  bearing  date  on  the  day  of  , 

by  which  it  is  referred  to  me  to  ascertain  and  report  what  is 
a  proper  sum  to  be  permanently  invested,  in  such  manner  that 
the  interest  shall  be  payable  to  ,  during  her  life,  in  lieu  of 

her  dower  in  the  lands  sold  in  this  cause,  I  have  proceeded  to 
inquire  into  and  ascertain  the  same  in  the  manner  directed  by 
said  order. 

And  I  report,  that  the  clear  yearly  income  which  the  said 
could  realize  from  the  whole  of  said  lands,  if  owner  of 
the  whole  for  life,  above  insurance,  repairs  and  taxes,  is  the  sum 
of  dollars ;  and  in  such  calculation  I  have  made  allowance 

for  all  repairs  necessary  to  keep  the  premises  in  as  good  condi- 
tion as  they  were  in  at  the  time  of  the  sale,  including  the  renewal 
of  any  part  of  the  buildings  thereon  that  may,  by  ordinary  wear 
and  tear,  or  from  decay,  require  renewal. 

And  I  further  report,  that  the  net  amount  of  sales  is 
dollars;  and  that  one- third  of  the  interest  thereon,  at  six  per 
cent.,  is  dollars ;  and  that  the  proper  income  to  be  secured 

to  said  ,  in  lieu  of  her  dower,  is  the  sum  of  dollars 

yearly,  which  sum  I  have  ascertained  by  adding  to  the  above 
amount  to  which  she  would  be  entitled  from  the  clear  yearly 
income,  one-half  of  the  excess  of  the  interest  of  one-third  of  the 
net  proceeds  above  the  same. 

And  I  further  report,  that  the  proper  sum  to  be  invested  out 
of  the  proceeds  of  sale  for  the  purpose  of  procuring  the  said 
income  for  said  ,  is  the  sum  of  dollars,  which  is 

the  amount  that  would  produce  said  income.  And  I  do  here- 
with transmit  the  depositions  of  witnesses  taken  by  me,  upon 
which  this  report,  and  the  conclusions  therein,  are  founded. 

All  which  is  respectfully  submitted  this,  &c. 


452 


FORMS   OF   PLEADINGS. 


DiyORCE.(a) 

Bill  for  divorce  for  adultery. 

In  Chancery  of  New  Jersey. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey 

Complaining,  shows  unto  your  Honor  your  orator, 
,  in  the  county  of 

(a)  The  Court  of  Chancery  has  jur- 
isdiction of  all  causes  of  divorce  and 
of  alimony  or  maintenance,  directed 
and  allowed  by  the  statute  conferring 
such  jurisdiction,  provided  the  parties 
complainant  or  defendant,  or  either 
of  them,  were,  or  shall  be,  inhabitants 
of  the  state  at  the  time  of  the  injury, 
desertion  or  neglect  comi)lained  of,  or 
where  the  marriage  shall  have  been 
solemnized  or  taken  place  within  the 
state,  and  the  complainant  shall  have 
been  an  actual  resident  in  the  state  at 
the  time  of  the  injury,  desertion  or 
neglect  complained  of,  and  at  the  time 
of  exhibiting  the  bill ;  or,  where  the 
adultery  was  committed  in  the  state, 
and  the  parties  complainant  and  de- 
fendant, or  either  of  them,  reside  in 
the  state  at  the  time  of  exhibiting  the 
bill ;  or,  where  the  complainant  or 
defendant  shall  be  a  resident  of  the 
state  at  the  time  of  filing  the  bill  of 
complaint,  and  the  complainant  or 
defendant  shall  have  been  a  resident 
of  the  state  for  tlie  term  of  two  years 
during  which  such  desertion  shall 
have  continued.  An  aflBdavit  of  non- 
collusion  must  be  annexed  to  the  bill 
of  complaint.  Rev.,  "Divorce,"  §  1 ; 
amended,  Pamph.  L.,  1890,  p.  34. 

The  Court  of  Chancery  shall  have 
jurisdiction  of  all  cases  of  divorce  in 
case  of  adultery  committed  out  of  this 
state,  where  the  complainant  or  de- 
fendant was  or  shall  have  been  a  resi- 
dent of  this  state  for  three  (now  two) 
years  next  preceding  the  time  when 


,0f 

,  and  State  of  New  Jersey,  that 

said   bill   was   or  shall   hereafter  be 
filed.     Rev.  Sup.,  ''Divorce,"  |  3. 

The  residence  required  by  the 
statute  above  cited  to  give  the  court 
jurisdiction,  means  fixed  domicil  or  . 
permanent  home.  Coddington  v.  Cod- 
dington,  5  C.  E.  Ch\  263 ;  see  Steele  v. 
Steele,  11  C.  E.  Gr.  85;  Winship  v. 
Winship,  1  C.  E.  Gr.  107;  Firth  v. 
Firth,  5  Dick.  Ch.  Rep.  Vol. 

Divorces  from  the  bond  of  matri- 
mony may  be  decreed  where,  at  the 
time  of  such  marriage,  either  of  the 
parties  had  another  husband  or  wife 
living;  where  the  parties  are  within 
the  degrees  prohibited  by  law ;  (see 
Rev.,  "Marriages,"  §  1 ;)  in  case  of 
adultery  in  either  of  the  parties ;  in 
case  of  willful,  continued  and  obstinate 
desertion  for  the  term  of  two  years ; 
and  where  either  of  the  parties  is- 
physically  and  incurably  impotent. 
Rev.,  "Divorce,"  p.  315.  It  is  the  duty 
of  a  wife  who  sues  for  divorce  to  cease 
cohabitation  with  her  husband  pend- 
ing the  suit.  2farsh  v.  Marsh,  1  Mc- 
Cart.  315 ;  Chapman  v.  Chapman,  l(y 
C.  E.  Gr.  394  And  the  voluntary 
separation  by  a  wife  from  her  hus- 
band, while  proceedings,  at  his  in- 
stance, were  pending  against  her  for  a 
divorce,  on  a  charge  of  adultery,  does- 
not  constitute  a  willful  desertion  in 
contemplation  of  law.  The  presump- 
tion must  be,  in  such  case,  that  the 
separation  is  by  his  procurement  or 
with  his  assent.  Marsh  v.  Marshy 
supra. 


DIVORCE. 


453 


your  orator  was  lawfully  joined  in  the  bonds  of  matrimony  to 
his  present  wife,  ,  on  the  day  of  ,  eighteen 

hundred  and  ,  from  which  time  forward  until  the  time  of 

the  filing  of  this  bill  your  orator  has  been  an  inhabitant  of 
aforesaid,  and  the  said  has  been  also  an  inhabitant 

of  the  same  place  until  on  or  about  the  day  of  , 

eighteen  hundred  and  ,  when  she  left  the  residence  of 

your  orator,  at  aforesaid,  and  went  to  ,  where  your 

orator  is  informed  and  believes  she  now  is. 

And  your  orator  further  shows,  that  the  said  ,  since  her 

said  marriage  with  your  orator,  and  on  different  days  of  the 
months  of  ,  eighteen  hundred  and  ,  wickedly  disre- 

garding the  solemnity  of  her  vows  and  the  sanctity  of  the  mar- 
riage state,  committed  adultery  with  one  ,  at  ,  in  the 
city  of            ,  in  the  State  of             ,  [or  as  the  ease  may  be).{a) 


(a)  A  general  allegation  in  a  bill 
for  divorce,  that  the  defendant,  within 
a  specified  time,  has  committed  adul- 
tery, is  insufficient.  The  person  with 
whom  the  crime  is  believed  to  have 
been  committed  must  be  named  ;  or, 
if  unknown,  an  averment  to  that  effect 
is  necessary.  Marsh  v.  3Tarsh,  1  C.  E. 
Gr.  391.  The  time  when,  the  place 
where  and  the  person  with  whom  the 
offence  was  committed  should  be 
charged  in  the  bill.  It  is  not  neces- 
sary to  state  the  day,  but  the  month 
and  year  should  be  stated.     Ibid. 

If  the  name  of  the  person  with 
whom  the  adultery  is  alleged  to  have 
been  committed  is  unknown,  the  time, 
place  and  circumstances  must  be 
stated,  so  as  to  identify  the  offence,  or 
the  person  of  the  adulterer  must  be 
described,  and  the  fact  that  the  name 
of  such  person  was  unknown  at  the 
time  of  filing  the  bill,  must  be  proved. 
If  the  name  is  known,  it  must  be 
stated  in  the  bill.  Miller  v.  Miller.  5 
•C.  £.  Gr.  216;  rule  163;  .see  Goodwin 
Y.  Goodwin,  8  C.  E.  Gr.  210 ;  Noel  v. 


Noel,  9  a  E.  Gr.  137.  When  the 
name  of  the  i^erson  with  whom,  and 
the  place  at  which,  the  offence  is 
alleged  to  have  been  committed  are 
set  forth,  an  allegation  that  the  offence 
was  committed  on  different  days,  in 
specified  months  of  specified  years, 
will  be  sufficient.  Black  v.  Black,  11 
C.  E.  Gr.  431.  All  suits  in  the  Court 
of  Chancery  for  divorces  may  be  com- 
menced by  filing  a  petition  with  the 
clerk  of  the  court;  which  petition 
shall  plainly  and  fully  state  the  cause 
or  causes  of  the  application  for  such 
divorce  and  the  relief  prayed.  Mev., 
"Divorce,"  |  7.  Where  the  marriage 
is  not  one  declared  originally  void  by 
the  statute,  and  the  case  is  one  which 
cannot  be  considered  within  its  provi- 
sions, as  included  in  the  term  void, 
the  suit  must  be  by  bill.  Selah  v. 
Selah,  8  C.  E.  Gr.  185.  A  charge  of 
adultery  and  a  charge  of  extreme, 
cruelty  cannot  be  united  in  the  same 
bill.  Decamp  v.  Decamp,  1  Gr.  Ch. 
294.  Nor  is  it  proper  to  blend  in  one 
bill  an  application  for  a  divorce  with 


454  FORMS   OF   PLEADINGS. 

And  your  orator  further  shows,  that,  by  means  of  the  premises, 
his  domestic  peace  and  happiness  have  been  entirely  destroyed. 
In  tender  consideration  whereof,  and  to  the  end  that  the  said 
may  answer  this  bill;  and  that  the  marriage  between 
your  orator  and  the  said  may  be  dissolved,  according  to 

the  statute  in  such  case  made  and  provided ;  and  that  your  orator 
may  have  such  other  or  further  relief  in  the  premises  as  may  be 
agreeable  to  equity  and  good  conscience. 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
to  your  orator  the  state's  writ  of  subpoena,  issuing  out  of  and 
under  the  seal  of  this  honorable  court,  to  be  directed  to  the  said 
,  commanding  her,  on  a  certain  day  and  under  a  certain 
penalty  therein  to  be  expressed,  personally  to  be  and  appear 
before  your  Honor  in  this  honorable  court,  then  and  there  to 
answer  the  premises,  and  to  stand  to,  abide  by  and  perform  such 
order,  direction  and  decree  as  to  your  Honor  shall  seem  meet 
and  as  shall  be  according  to  the  statute  in  such  case  made  and 
provided. 

{Signature  of  solicitor  and  counsel.) 

Affidavit  of  non-collusion.     State  of  New  Jersey,  ss. — 
,  the  complainant  in  the  foregoing  bill,  being  duly  sworn, 
says — that  his  complaint  in  said  bill  is  not  made  by  any  collu- 
sion between  him  and  the  defendant  in  said  bill  for  the  purpose 
of  dissolving  their  marriage,  but  in  truth  and  good  faith,  for  the 

causes  set  forth  in  the  bill  of  complaint. 

[Signature.) 
{Jurat.) 

a  prayer  for  independent  relief,  at  his  discretion,  assign  to  any  poor 
grounded  on  charges  which  require  person  a  solicitor  and  counsel  to  prose-, 
an  answer  under  oath.  Ibid.  A  bill  cute  a  suit,  who,  together  with  all 
for  divorce  may  contain  a  prayer  for  other  officers,  shall  perform,  their  re- 
alimony,  and  any  charge  made  in  the  spective  duties  without  fee  or  reward.- 
bill  respecting  property,  which  may  Rtv.,  "Divorce"  §  33 ;  see  also  page 
affect  the  question  of  alimony,  will  be  72,  supra. 
proper.     Ibid.     The  Chancellor  may. 


DIVORCE.  455 

Answer  to  bill  for  divorce  for  adultery.(a) 

The  answer  of  to  the  bill  of  complaint  of  , 

complainant. 

This  defendant,  for  answer  to  said  bill  of  complaint,  or  unto 
so  much  and  such  parts  thereof  as  she  is  advised  is  material  and 
necessary  for  her  to  make  answer  unto,  answers  and  says,  that  it 
is  true,  as  stated  in  the  said  bill  of  complaint,  that  she  was  law- 
fully married  to  the  said  complainant  on  the  day  of  , 
eighteen  hundred  and  ;  and  that  she  and  the  said  com- 
plainant continued  to  reside  at  ,  in  ,  from  that  time, 
or  shortly  thereafter,  until  the  day  of  ,  eighteen 
hundred  and             ,  &c. 

And  this  defendant,  further  answering,  admits  it  to  be  true, 
that,  at  the  date  last  mentioned,  she  left  the  residence  of  said 
complainant,  and  went  to  reside  in  the  city  of  ;  and  says 

that  she  was  compelled  to  leave  the  residence  of  her  husband, 
by  reason  of  his  cruel  conduct  towards  her ;  that  for  about  the 
term  of  four  months,  the  complainant  behaved  himself  as  became 
a  husband,  and  then,  as  a  consequence  of  his  intemperate  habits 
or  his  evil  association,  or  both  causes  combined,  he  began  to 
manifest  a  very  jealous  and  suspicious  deportment  towards  this 
defendant,  and  would  often,  in  the  grossest  terms  of  abuse,  accuse 
this  defendant  of  infidelity  to  her  marriage  vows,  which  accusa- 
tion this  defendant  avers  to  be  utterly  without  foundation  in 
truth. 

And  this  defendant,  further  answering,  says,  that  the  said 
complainant  continued  this  cruel  course  of  conduct  towards  her 
repeatedly  and  from  time  to  time,  until  the  said  day  of 

(a)  In  suits  for  divorce,  under  the  bill  in  chancery.  In  cases  commenced 
statute,  the  answer,  although  sworn  by  petition,  the  defendant  must  file  his 
to,  cannot  be  considered  as  evidence  or  her  answer  within  three  days  after 
for  any  purpose.  Miller  v.  Miller,  the  return-day  of  the  citation ;  if  an 
Sax.  386;  Rev,  '^Divorce,"  ^.  6.  It  answer  is  filed,  the  cause  is  at  issue 
may  be  used  as  an  affidavit  on  a  mo-  without  a  replication  ;  the  time  for  the 
tion  for  alimony  pendente  lite.  Anthony  petitioner  to  take  his  or  her  evidence 
V.  Anthony,  3  Stock.  70.  Where  the  runs  from  the  date  of  the  filing  of  the 
proceeding  is  by  bill,  and  the  defend-  answer,  and  the  taking  of  evidence  is 
ant  answers,  the  complainant  should  governed  by  the  eightieth  and  eighty- 
put  in  the  usual  replication,  and  the  first  rules.  Rev.,  "Divorce,"  ^11. 
cause  proceeds  as  in  other  causes  by 


456  FORMS   OF    PLEA.DINGS. 

before  mentioned,  when  she,  perceiving  no  hope  of  any 
change  in  his  treatment,  and  being  very  unhappy  in  living  with 
a  husband  whose  only  deportment  towards  her  was  that  of  cruel 
suspicion  and  disgraceful  crimination,  left  his  residence,  with  his 
full  understanding  and  knowledge;  that,  after  leaving  the  resi- 
dence of  the  complainant,  she  endeavored  again  to  pursue  the 
business  of  store- keeping,  in  which  she  was  engaged  when  she 
married  the  complainant,  but  soon  found  that  her  character  had 
been  so  much  traduced  by  her  said  husband  that  she  could  not 
make  a  living  by  the  business,  and  she  therefore,  in  the  month 
of  ,  eighteen  hundred  and  ,  relinquished  it,  and 

went  to  live  with  her  brother,  under  whose  roof  and  protection 
she  still  continues  to  reside. 

And  this  defendant,  further  answering,  denies  that  she  ever 
did,  on  different  days  or  on  any  day  or  time  in  the  month  of 
,  eighteen  hundred  and  ,  or  in  either  of  those 

months  or  any  other  month  or  time,  commit  adultery  with  the 
said  ,  in  the  said  bill  mentioned,  or  with  any  person  or 

persons  whomsoever,  either  in  the  city  of  or  elsewhere; 

and  she  says  that  the  charge  of  adultery  made  in  the  said  com- 
plainant's bill  against  her  is  wholly  untrue,  and  a  most  unfounded 
and  cruel  imputation;  and,  on  the  contrary  thereof,  this  defendant 
avers  the  truth  to  be,  that  she  has  always,  since  her  marriage 
with  the  said  complainant,  faithfully  regarded  towards  him  her 
marriage  vows,  and  has  been  true  and  faithful  to  his  bed  and 
her  obligations  as  his  wife. 

And  this  defendant  humbly  prays  to  be  hence  dismissed,  with 
her  reasonable  costs  and  charges  in  this  behalf  most  wrongfully 
sustained.  {Signature  of  solicitor  of  defendant.) 

Petition'  for  divorce  for  adultery.(a)    The  petition  of 
,  of  ,  in  the  State  of  New  Jersey,  respectfully 

(a)  A  divorce  cannot  be  had  on  the  of  her  Jiusband,  or  reason  to  believe 

ground  of  adultery  if  the  husband  has  it,  continues  voluntarily  to  live  with 

been  reconciled  to  his  wife  after  the  her  husband,  excej^t   for   imiierative 

adultery  committed  by  her,  or,  know-  reasons,  she  condones  the  offence,  and 

ing  it,  retained  her  after  she  has  com-  is  not  entitled  to  a  divorce  on  that 

mitted  adultery.     Marsh  v.  Marsh,  2  ground.    Stevens  v.  Stevens,  1  McCart. 

Beas.   283.     Or,  if  the   wife   having  374;  see  Jones  y .  Jones,  o  C.  E.  Or.  33. 
knowledge  of  the  adultery  on  the  part 


DIVOKCE.  457 

shows,  that  on   or  about  the  day  of  ,  eighteen 

hundred  and  ,  your  petitioner  was  married  to  , 

her  present  husband,  at  ,  in  the  county  of  ,  and 

state  aforesaid ;  and  that  she  continued  to  live  with  him  as  her 
husband,  until,  &c.,  (stating  time  of  separation ;)  and  that  from 
the  time  of  said  marriage  they  have  been,  and  now  are,  inhabi- 
tants of  this  state;  and  that  the  said  ,  since  his  marriage 
with  your  petitioner,  and  on  the  {state  the  day,  month  and  year,) 
at  {state  the  place,)  wickedly  disregarding  the  solemnity  of  his 
vows  and  the  sanctity  of  the  marriage  state,  committed  adultery 
with  one 

And  your  petitioner  further  shows,  that  she  has  not  volun- 
tarily cohabited  with  her  said  husband  since  the  discovery  by 
her  of  said  act  of  adultery. 

She  therefore  prays,  that  she  may  be  divorced  from  her  said 

husband  for  the  cause  aforesaid,  according  to  the  statute  in  such 

case  made  and  provided;    {insert  prayer  for  suj^port  and  for 

custody  of  children  if  desired,)  and  may  have  such  further  or 

other  relief  as  may  be  equitable  and  just. 

And  she  will  ever  pray,  &c. 

{Signature  of  counsel.) 

■{Annex  affidavit  of  non- collusion,  as  in  preceding  form,  substi- 
tuting the  word  " petition"  for  "bill  of  complaint." ){a) 

Petition  for  divorce  for  desertion.(6) 

{Address.) 
The  petition  of  ,•  of  the  county  of  ,  in  the  State 

of  New  Jersey,  respectfully  shows,  that  your  petitioner  was 

(a)  The  complainant  or  petitioner  (6)  If  a   husband,  by  his  extreme 

shall  make  his  or  her  oath  or  affirma-  cruelty  to  his  wife,  compels  her,  for 

tion,  to  be  annexed  to  the  bill  or  peti-  her  own  safety  and  protection,  to  seek 

tion,  that  his  or  her  complaint  is  not  a  home  elsewhere  than  under  her  hus- 

made  by  any  collusion  between  him  band's  roof,  she  does  not  thereby  de- 

or  her  and  the  defendant,  for  the  pur-  sert  her  husband,  in  the  meaning  of 

pose  of  dissolving  their  marriage,  but  the  statute.  Marker  v.  Marker,  3  Stock. 

in  truth  and  good  faith  for  the  cause  356 ;  see  Bitlenhome  v.  Riltenhouse,  2 

or  causes  set  forth  in  the  bill  or  peti-  Stew.  Eq.  274.     To   establish   a   case 

tion.     See  Rev.,  "Divorce,"  §  7.  of  desertion  sufficient  to  authorize  a 


458  FOEMS   OF   PLEADINGS. 

married,  on  the  day  of  ,  eighteen  hundred  and 

,  at  ,  in  the  county  of  ,  in  the  State  of 

New  Jersey,  to  ,  her  present  husband;  since  which  time 

she  has  resided,  and  still  resides  at  ,  in  the  county  of 

aforesaid. 

And  your  petitioner  further  shows,  that  her  said  husband 
lived  with  her,  and  supported  her  for  about  years  after 

their  marriage,  and  until  the  month  of  ,  eighteen  hun- 

dred and  ,  when  he  deserted  her,  and  left  the  State  of 

New  Jersey,  as  she  has  understood  and  believes ;    but  he  has 
since  returned  to  this  state,  and  now  resides  at  ,  in  the 

county  of 

And  your  petitioner  further  shows,  that  for  more  than  two 
years  last  past  her  said  husband  has  willfully,  continuedly  and 
obstinately  deserted  her,  and  during  all  that  time  has  wholly 
neglected  to  make  any  provision  for  her  support. 

And   your   petitioner   further   shows,  that   she   has 
children  by  her  said  husband,  viz.,  {state  children's  names  and 
ages.) 

And  your  petitioner  further  shows,  that  her  maiden  name  was 
;  and  that  she  has  no  means  of  support  except  from  her 
own  exertions ;  and  that  the  parents  of  her  said  husband  have 
taken  her  said  children,  and  now  support  them. 

Your  petitioner  therefore  respectfully  prays,  that  she  may  be 
divorced  from  her  said  husband ;  and  that  he  may  be  compelled, 
by  the  order  and  decree  of  this  honorable  court,  to  provide  for 
and  support  her  and  her  said  children;  and  that  she  may  have 
such  further  or  other  relief  as  may  be  equitable  and  just. 

And  your  petitioner  will  ever  pray,  &c. 

[Signature  of  solicitor  and  counsel  with  petitioner.) 

{Annex  affidavit  of  non- collusion,  in  usual  form.) 

divorce,   it    sliould   appear   that   the  v.  Jennings,  2   Beas.   38 ;    Moores   v. 

wife   left   her   husband   of    her   own  3Ioores,  1   C.  E.  Or.  lib.     The  three 

accord,  without  his  consent  and  against  years'' residence  requisite  to  give  jur- 

his  will,  or   that  without  just  cause  isdiction  in  cases  of  divorce  must  be 

she  obstinately  refused   to  return  on  •  continuous.     Sanders    v.    Sanders,    2- 

the  request  of  her  husband.    Jennings  Stew.  Eq.  410. 


DIVORCE. 


459 


Citation  in  divorce.(a)     [For  form  of  citation  on  petition 
for  divorce,  and  practice  thereon,  see  page  21,  ante,  and  note.) 


Order  of  reference  in  divorce  when  proceedings 
are  ex  parte.(6) 

{Title  of  cause.) 

Upon  opening  this  matter  to  the  court,  by  ,  of  counsel 

with  the  petitioner,  and  it  appearing  that  *  process  of  citation 
for  the  defendant  to  appear  and  answer  the  petitioner's  petition 
has  been  duly  issued  and  returned  served  upon  him,  together 
with  a  certified  copy  of  said  petition ;  {or,  in  case  of  an  absent 
defendant,  after  *,  "  due  notice  of  the  order  of  this  court,  made 


(a)  Upon  filing  his  petition,  the 
clerk,  if  required,  makes  out  a  certi- 
fied copy  of  the  petition,  and  issues  a 
citation  under  the  seal  of  the  court ; 
it  is  the  duty  of  the  sheriiF  to  serve 
such  citation  and  the  copy  of  the  peti- 
tion. Such  service  is  made  either  by 
delivering  copies  thereof  to  the  de- 
fendant personally  or  by  leaving  them 
at  his  or  her  dwelling-house  or  usual 
place  of  abode,  at  least  twenty  entire 
days  before  the  return-day  of  the 
citation.  It  is  a  sufficient  return  for 
the  sheriff  to  endorse  the  word 
"  served  "  or  "  cited,"  and  the  words 
"  together  with  a  copy  of  the  petition," 
on  the  writ,  over  his  official  signature. 
Rev.,  '■'Divorce"  |  8,  et  seq.  In  case  it 
shall  be  made  to  appear,  by  affidavit 
or  otherwise,  to  the  satisfaction  of  the 
Chancellor,  that  such  defendant  is  out 
of  the  state,  the  Chancellor  may  make 
an  order  according  to  the  form  on 
page  24,  ante.  Id.,  I  13.  It  was  held 
in  Pullen  v.  Pulkn,  2  Stew.  Eq.  541, 
that  .under  the  circumstances,  the  pe- 
titioner should  have  made  the  affi- 
davit of  the  defendant's  non-residence; 
one  taken  by  her  brother-in-law,  held 
not  sufficient. 

(6)  The  like  process  and  course  of 


practice  and  procedure  shall  be  had 
and  pursued  in  all  causes  of  divorce 
mentioned  in  the  statute,  as  are  usu- 
ally had  and  pursued  in  other  causes 
in  the  Court  of  Chancery,  except  that 
the  answer  of  the  defendant  shall  not 
be  under  oath,  i^er.,  "Divorce,'^  ^  6. 
In  proceedings  for  divorce  commenced 
by  petition,  if  the  defendant  shall  not 
file  his  or  her  answer  to  the  petition 
within  three  days  after  the  sheriff 
shall  have  returned  the  citation 
"served"  or  "cited,"  or  in  case  of  an 
absent  defendant,  within  the  time 
limited  by  the  order  of  publication, 
(due  proof  having  been  first  made,  or 
the  service  or  publication  of  the 
requisite  notice  thereunder,)  the  court 
may  make  an  order  that  the  petitioner 
proceed  to  take  depositions  and  other 
evidence  to  substantiate  and  prove  the 
allegations  in  the  petition,  and  to 
bring  on  the  hearing  of  the  cause 
ez  parte.  Id.,  |  12.  By  the  rules,  all 
references  in  divorce  proceedings  must 
be  to  special  masters.  Pkule  45.  In 
suits  for  divorce  on  account  of  adul- 
tery, no  reference  can  be  ordered 
where  the  offence  is  not  designated  in 
the  bill  or  petition  in  the  manner 
designated  by  the  rule.     Rule  163. 


460  FOEMS   OF   PLEADINGS. 

on  the  day  of  last  past,  directing  the  defendant  to 

appear  and  answer  the  said  petition  on  or  before  the  day 

of  then  next,  has  been  duly  published  and  mailed,  as  in 

said  order,  and  by  the  rules  of  this  court,  directed  and  prescribed ; 
and  that  the  said  defendant  has  not  answered  to  the  same  within 
the  time  limited  by  law  and  said  order,  but  has  wholly  failed 
and  neglected  so  to  do : ")  It  is  thereupon,  on  this,  &c.,  ordered, 
that  it  be  referred  to  ,  one  of  the  special  masters  of  this 

court,  to  ascertain  and  report  as  to  the  truth  of  the  allegations  of 
the  petitioner's  petition,  and  his  opinion  thereon ;  and  that  the 
petitioner  proceed  to  take  depositions  and  other  evidence  before 
said  special  master,  to  substantiate  and  prove  the  allegations  in 
said  petition,  and  to  bring  on  the  hearing  of  the  cause  ex  parte; 
and  that  the  said  master  do  return,  together  with  his  report,  and 
as  part  thereof,  such  depositions  and  other  evidence  as  may  be 
taken  before  him  in  pursuance  of  this  order. 

Master's  report  on  an  order  of  reference  in  divorce 
for  the  cause  of  desertion,  (a) 

{Title  of  cause.) 
In  pursuance  of  an  order  of  this  court,  made  in  the  above- 
stated  cause,  bearing  date  on  the  day  of  ,  &c., 
whereby  it  was  referred  to  the  subscriber,  one  of  the  special 

(a)  In   a  suit   for   divorce  on  the  only  must   the  fact  of  desertion  be 

ground  of  desertion,  the  master  must  sworn  to,  but  the  circumstances  must 

report    the   facts   and    circumstances  be  proved.    Tate  v.  Tate,  11  C.  E.  Gr. 

under  which  the  desertion  took  place,  55.     To  make  out  a  case  of  desertion, 

and    the   reasons   which   caused   and  three  things  must  be  shown — cessa- 

provoked   it,   if   they   can   be   ascer-  tion  of  cohabitation,  an  intent  in  the 

tained.     Bale  164 ;   Belton  v.  Belton,  mind  of  the  defendant  to  desert,  and 

11   C.  E.  Gr.  449 ;  Stone  v.  Slone,  1  that  the  separation  was  against  the 

Slew.  Eq.  409.     The   desertion   must  will  of  the  complainant.     Jhijlor  v. 

appear  from  the  facts  sworn  to.    Stone  Taylor,  1  Stew.  Eq.  207.     More  than 

v.  Stone,  10  C.  E.  Or.  445.     A  decree  the   unsupported   testimony   of   the 

will   not  be  granted  where  the  only  petitioner  is  necessary  to  prove,  the 

evidence   of  the  aUeged   desertion  is  desertion.     Fallen  v.  Fallen,  2  Stew. 

the  oath  of  the  witness  that  the  de-  Eq.   541 ;    McShane  v.   McShane,   18 

fendant  "deserted"  the  complainant.  Stew.  Eq.Z^l.    Eepeated  refusals  by 

Leaning  v.  Leaning,  10  C.  E.  Gr.  211 ;  a  wife  to  live  with  her  husband  in 

Fallen  v.  Fallen,  2  Stew.  Eq.  542.    Not  the  place  of  his  residence  chosen  by 


DIVORCE.  461 

masters  of  this  court,  to  ascertain  and  report  as  to  the  truth  of 
the  allegations  of  the  petitioner's  petition,  [or,  "  complainant's 
bill,")  and  his  opinion  thereon,  &c.,  I  do  report  that  I  have 
been    attended    by  ,   solicitor    of    said    petitioner    (or 

"complainant;")  and  that  in  his  presence  I  have  taken  the 
depositions  of  witnesses  produced  before  me,  and  have  examined 
into  the  matters  thereby  referred  to  me.  * 

And  I  find  and  report,  that  the  said  petitioner  (or  "com- 
plainant") and  the  defendant  were  lawfully  married  (state  the 
date,)  in  (state  the  place;)  and  that  the  petitioner  (or  "com- 
plainant") has  lived  in  ,  in  this  state,  for  the  period  of 
years  last  past;  that  the  petitioner  (or  "complainant") 
and  defendant  lived  together  as  husband  and  wife  from  the  time 
of  their  marriage  as  aforesaid  until  ,  at  which  time  both 
of  said  parties  were  residents  of  the  said  city  of  ,  (or  as 
the  ease  may  be.) 

And  I  further  report,  that  on  the  day  of  ,  eighteen 

hundred  and  ,  the  said  defendant  deserted  the  petitioner, 

(or  "complainant")  and  has  never,  since  that  time,  returned  to 
her,  and  that,  in  my  opinion,  the  said  desertion  was  and  is  willful, 

him,  without  a  justifyiug  cause,  con-  mann&r  that  it  may  appear  whether 

stitutes   such    desertion    as    entitles  the  facts  sworn  to  are  w^ithin  the  per- 

him  to  a  divorce.     Sunt  v.  Hunt,  2  sonal   knowledge  of  the  witness,  or 

Stew.  Eq.  96.    A  wife  was  held  not  to  are  from  hearsay  or  reputation ;  and 

be  guilty  of  desertion  where  she  left  the  master  shall  not  report  any  evi- 

her  home  because  of  the  threatening  dence  from  hearsay  and   reputation 

language  and  conduct  of  her  husband,  which   shall   appear  to   him  to   be 

who    thereupon,    instead   of   asking  illegal,  unless  the  complainant  or  his 

her  to  return,  notified  the  public,  by  counsel  insists  that  the  same  is  legal; 

advertisement,  not  to  give  her  credit.  and   such   master   shall   report   dis- 

Eittenhovse  v.  Bittenhouse,  2  Stew.  Eq.  tinctly   what    facts   alleged    as    the 

274.  Where  a  divorce  suit  is  referred  ground  of  divorce  are  proved  to  his 

to  a  master,  it  is  irregular  to  exam-  satisfaction,    and  *  also    what     facts 

ine  a  witness  before  another  master.  necessary  to  give  jurisdiction  are  so 

Cook  V.  Cook,  2  JBeas.  263.     A  master  proved ;  and  in  suits  based  on  deser- 

must  perform  the  duties,  under  an  tion,  shall  examine  into  and  report 

order  of  reference,  in  person  ;  neither  the  facts   and   circumstances   under 

his   authority  nor   his   duty  can   be  which  the  desertion  took  place,  and 

delegated.     Stone  v.  Stone,  1  Stew.  Eq.  the   reasons   which   caused   or    pro- 

409.     The   master   shall   take   down  voked  it,  if  the  same  can  be  ascer- 

and   report    the   testimony   in   such  tained.     Rule  164. 


462  FORMS   OF    PLEADINGS. 

continued  and  obstinate.  All  of  which  will  more  fully  appear 
by  the  testimony  of  the  witnesses  produced  before  me,  whose 
depositions  are  annexed  to  this  my  report. 

And  I  further  report,  that  I  have  endeavored  to  ascertain  the 
facts  and  circumstances  under  which  the  said  desertion  took 
place,  and  the  reasons  which  caused  it,  but  have  been  unable  so 
to  do,  the  petitioner  (or  "complainant")  herself  being  unable  to 
account  in  any  way  for  said  desertion,  unless  that  it  was  caused 
by  the  dissipation  of  the  said  defendant,  {or  otherwise  state  what 
caused  or  provoked  the  desertion,  according  to  the  facts  as  ascer- 
tained.) 

And  I  further  report,  that  I  am  of  opinion  that  all  the 
material  facts  charged  in  the  petitioner's  petition  {or  *' com- 
plainant's bill")  are  true,  and  that  a  decree  of  divorce  should  be 
made  in  this  cause  for  desertion,  pursuant  to  the  prayer  of  said 
petition  {or  "  bill.") 

Respectfully  submitted  this  day  of  ,  eighteen 

hundred  and 

{Signature  of  master.) 

Master's  report  on  an  order  of  reference  in  divorce 
for  the  cause  of  adultery. (a) 

{Title  of  cause.) 
As  in  preceding  form  to  *,  then,  "And  I  do  find  and  report, 
that  it  is  proved  to  my  satisfaction  that  the  petitioner  and  the 
defendant,  whose   maiden  name  was  ,  intermarried  at 

(a)  Evidence  in  cases  of  adultery.  counter-testimony  of  the  person  ac- 
The  uncorroborated  testimony  of  the  cused  and  her  particeps  criminis. 
complainant  as  to  the  cause  of  divorce  Berckmans  v.  Berckmans,  1  C.  E.  Gr. 
is  insufficient  to  warrant  a  decree  a  122;  and  see  Miller  v.  Miller,  5  C.  E. 
vinculo.  Belton  v.  Belton,  11  C.  E.  Gr.  Gr.  216.  Admissions  of  a  party  on  a 
449.  A  charge  of  adultery  pleaded  charge  of  adultery,  are  competent 
in  recrimination  as  a  bar  to  divorce,  proof  of  the  charge  only  when  con- 
must  be  sustained  by  other  proof  than  nected  with  other  evidence.  Miller 
the  unsupported  evidence  of  the  de-  v.  Miller,  1  Gr.  Ch.  139 ;  see  Jones  v. 
fendant  pleading  it.  Beid  v.  Beid,  6  Jones,  2  C.  E.  Gr.  351.  Direct  evi- 
C.  E.  (?n  331.  The  testimony  of  one  dence  is  not  required  to  sustain  the 
witness  uncorroborated,  unsupported  charge  of  adultery.  Day  v.  Day,  3 
and,  in  its  details,  improbable,  is  not  Gr.  Ch.  444.  But  it  is  necessary  to 
sufficient  to  establish  the  charge  of  show  that  adultery  is  the  only  neces- 
adultery  against  the  full  and  explicit  sary  conclusion  from  the  facts  of  the 


DIVOBCE.  463 

,  in  this  state,  on  the  day  of  ,  &c.;  that 

both  said  parties  then    were  and   have  since   continued  to  be 
inhabitants  of  this  state. 

And  I  further  report,  that  it  appears  to  my  satisfaction,  from 
the  said  depositions,  that  the  said  defendant  committed  adultery 
with  one  ,  at  ,  in  the  State  of  ,  on  the 

day  of  ,  eighteen  hundred  and 

And  I  further  report,  that  I  am  of  opinion  that  all  the 
material  facts  charged  in  the  said  petition  are  true,  and  that  a 
decree  of  divorce  should  be  made  in  this  cause  for  the  crime  of 
adultery,  pursuant  to  the  prayer  of  the  said  petition. 

Respectfully  submitted  this  day  of  ,  eighteen 

hundred  and 

{Signature  of  master.) 

Final  decree  in  divorce  ex  parte,  on  bill  or  peti- 
tion, (a) 

{Title  of  cause.) 

This  cause  having  been  regularly  set  doMU  for  hearing  at  the 

term,  eighteen    hundred   and  ,  of  this  court, 

and  now  coming  on  to  be  heard  in  the  presence  of  ,  of 

counsel  with  the  complainant  {or  "  petitioner,")  no  one  appearing 

case.     Mount  v.  Mount,  2  McCarl.  162.  an  answer  to  a  petition  for  divorce 

The   same   fullness  and   cogency  of  on  account  of  adultery,  are  not,  in 

proof    is    not    required    to    sustain  an  undefended  suit,  evidence  sufficient 

adultery   when    pleaded    in    bar   as  to  establish  eitlier  the  marriage,  resi- 

when     alleged    as    the     ground     of  dence  or  guilt  of  the  parties.   Schmidt 

divorce.     Derby  v.  Berbij,  6  C.  E.  Or.  v.  Schmidt,  2  Stew.  Eq.  496. 

58.     Proof  of  adultery  with  A.  will  (a)  If  it  appears  to  the  court  that 

not  sustain  a  charge  of  adultery  with  the   adultery    complained    of    shall 

B. ;  nor  will  proof  of  adultery  with  have  been  occasioned  by  the  collu- 

a  person  whose  name  was  known  to  si  on  of  the  parties,  and  done  with  an 

the  complainant  sustain  a  charge  of  intention   to   procure  a   divorce,  or 

adultery  with  a  person  whose  name  that  the  complainant  was  consenting 

is  alleged  to  be  unknown.     Miller  v.  thereto,  or   that   both   parties   have 

Miller,  5  C.  E.  Or.  216.     The  precise  been    guilty    of    adultery,   then    no 

time  of  the  adultery  stated  in  tlie  divorce     shall    be     decreed.      Rev., 

bill   is  not  necessary  to  be  proved,  '^Divorce,"  I    30.     No   decree   in   an 

provided  the  variance  is  not  so  great  ex  parte  divorce  case  shall  be  signed 

as  to  mislead  the  defendant.     Ibid.  until  after  the  master's  report  shall 

But  a  variance  as  to  time,  place  and  have  been  on  file  thirty  days.     Bute 

person  is  fatal.     Prince  v.  Prince,  10  .165. 
C.  E.  Gr.  310.     The  admissions   of 


464  FORMS   OP   PLEADINGS. 

for  the  defendant :  Whereupon,  and  upon  reading  the  pleadings 
and  proofs  in  the  cause,  and  the  report  of  ,  one  of  the 

special  masters  of  this  court,  to  whom,  by  a  previous  order 
herein,  it  was  referred  to  take  the  depositions  and  other  proofs 
offered  by  the  said  complainant  {or  "petitioner")  in  support  of 
the  allegations  of  the  bill  of  complaint  (or  "petition")  and  to 
report  the  same,  together  with  his  opinion  thereon;  from  all 
which  it  now  appears  satisfactorily  to  the  Chancellor  that  the 
marriage   between   the  complainant  {or  "petitioner,")  , 

and  the  defendant,  ,  was  solemnized  and  took  place  in  the 

State  of  ;  and  that  the  said  complainant  {or  "petitioner,") 

was  an  actual  resident  of,  and  inhabitant  in,  this  state  at  the 
time  of  the  injury  complained  of,  and  at  the  time  of  exhibiting 
the  said  bill  of  complaint  {or  "petition;")  {or  state  the  facts 
according  to  the  'proofs  and  that  the  said  defendant  has  been 
guilty  of  *  {in  case  of  desertion)  willful,  continued  and  obsti- 
nate desertion  of  the  complainant  {or  "petitioner")  during 
the  term  of  two  years  next  before  the  exhibiting  of  the  said 
bill  of  complaint  {or  "petition;")  {or,  in  case  of  adultery, 
after  *,  "the  crime  of  adultery  charged  against  him  in  the 
said  bill  of  complaint  or  'petition:'")  It  is  thereupon,  on 
this  day  of  ,  eighteen  hundred  and  ,  by  his 

Honor,  ,  Chancellor  of  the  State  of  New  Jersey,  by  virtue 

of  the  power  and  authority  of  this  court,  and  of  the  acts  of  the 
legislature  in  such  case  made  and  provided,  ordered,  adjudged 
and  decreed,  that  the  said  complainant  {or  "petitioner,")  , 

and  the  said  defendant,  ,  be  divorced  (a)  from  the  bond  of 

matrimony  for  the  cause  aforesaid,  and  the  marriage  between 
them  is  hereby  dissolved  accordingly,  and  the  said  parties,  and 

(a)  For  desertion,  adultery  or  ex-  ing  for  a  divorce  from  the  bond  of 
treme  cruelty,  in  either  of  the  parties,  matrimony.  Where  such  pi-oof  has 
*  *  *  the  Court  of  Chancery  may  been  made,  the  court,  in  case  it  shall 
decree  a  divorce  from  the  bed  and  dgem  it  just  so  to  do,  may  also  decree 
board  forever  thereafter,  or,  in  the  that  the  guilty  party  shall  forfeit  all 
case  of  extreme  cruelty,  for  a  limited  right  of  dower,  curtesy  and  adminis- 
time,  as  shall  seem  just  and  reason-  tration  or  participation  in  the  prop- 
able  ;  but  in  every  such  case,  except  erty  or  estate  of  the  party  in  whose  ■ 
for  extreme  cruelty,  the  party  apply-  favor  the  decree  is  entered.  Pamph.- 
ing  shall  prove  that  he  or  she  has  L.,  1890,  p.  76. 
conscientious  scruples  against  apply- 


DIVORCE.  465 

each  of  them,  are  and  is  hereby  freed  and  discharged  from  the 
obligations  thereof.  [If  the  decree  he  against  the  husband,  add 
clause  Jor  custody  of  children,  if  desired,  as  folloics :  "And  it  is 
further  ordered  and  decreed,  that  the  petitioner  have  the  care 
and  custody  of  ,  the  child  of  the  said  marriage,  until  the 

further  order  of  this  court.") 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the 
defendant  pay  to  the  complainant  (or  "petitioner")  her  costs  of 
this  suit  to  be  taxed;  and  that  the  complainant  [or  "petitioner") 
have  execution  therefor,  according  to  the  practice  of  this  court. 

TEMPORARY  ALIMONY. 

Petition  for  alimony,  &c.,  pendente  lite.(a) 
{Title  of  cause.) 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

The  petition  of  ,  the  above-named  defendant,  respect- 

fully shows,  that  her  husband,  the  said  ,  has  recently  filed 

a  petition  against  her  in  this  cause  for  divorce  for  the  cause  of 

(a)  In  a  suit  for  divorce  tlie  court  389,  where  a  husband  filed  his  bill 

will,  at  its  discretion,  make  an  allow-  against  his  wife  for  divorce  for  deser- 

ance  to  the  wife  for  her  maintenance  tion,  and  the  wife  answered  and'  peti- 

pendente  lite,  and  also  for  counsel  fees,  tioned  for  alimony  pendente  lite,  it  was 

whether  she  be  complainant  or  de-  held  that  under  the  circumstances  the 

fendant.     Amos  v.  Amo?,  3  Gr.   Ch.  case    must   be   taken   most   strongly 

171 ;  Puterson  v.  Paterson,  1  Hal.  Ch.  against  the  petitioner,  and  that  the 

389;    Vreeland  v.  Vreeland,^  C.  E.  Gr.  burthen  of  proof  Avas  on  her. 
43.    The  court  regards  the  institution  On  a  bill  for  alimony  and  main- 

of  a  suit  for  divorce  by  the  husband  tenance,  a  motion  for  alimony  pen- 

against  the  wife  as  a  sufficient  cause  dente  lite  and  counsel  fee  to  a  com- 

for  allowing  a  separate  maintenance,  plainant's  counsel,  may  be  denied  if 

and  the  allowance  is  made  upon  the  the  case,  as  it  appears  at  the  time  of 

principle  that  it  would  be  improper  the  making  of  the  motion,  shows  that 

for  the  parties  to   cohabit   pending  there  is  no  foundation  .for  the  bill, 

such  suit.     3Iarsh  v.  Marsh,  1  McCart.  Dougherty   v.  Dougherty,  4  Hal.   Ch. 

315.     A  wife  is  entitled  to  alimony  540.     On  a  motion  for  alimony  pen- 

pendente  lite  on  a  bill   filed   by  her  dente  lite,   on   bill   by  the   wife   for 

husband  to  annul  their  marriage  on  divoi'ce  from  bed  and  board  on  the 

the  ground  of  duress,  which  the  wife  alleged  ground  of  cruel   treatment, 

denies.     Vroom  v.  Marsh,  2  Stew.  Eq.  and  answer  filed  and  affidavits  taken 

15.    In  Walling  v.  Walling,  1  C.  E.  Gr.  on   both   sides,  it  is  proper  for  the 

2e 


466  FORMS   OF   PLEADINGS. 

adultery  (or  otherwise  state  the  facts  of  the  case.)  That  your 
petitioner  being  served  with  a  citation  for  that  purpose,  has 
caused  her  appearance  to  be  entered  in  this  suit,  (and  if  the  fact 
be  so,  add,  "and  has  put  in  her  answer  to  said  petition,  denying 
the  allegations  of  said  petition.") 

And  your  petitioner  further  shows,  that  the  charge  of  adul- 
tery made  by  her  said  husband  in  his  said  petition  is  wholly 
untrue.  And  she  denies  that  she  ever  did,  &c.,  {repeat  the 
charges  and  allegations  of  the  petition  for  divorce.)  A  nd  on  the 
-contrary  thereof,  this  petitioner  avers  the  truth  to  be,  that  she 
has  always,  since  her  marriage  with  the  said  ,  faithfully 

regarded  towards  him  her  marriage  vows,  and  was  true  and 
faithful  to  his  bed  and  her  obligations  as  his  lawful  wife.  All 
which  matters  and  things  your  petitioner  is  ready  to  aver,  main- 
tain and  prove,  as  this  honorable  court  shall  direct. 

And  your  petitioner  further  shows,  that  she  is  wholly  destitute 
of  the  means  of  supporting  herself  pending  this  suit,  or  of  carry- 
ing on  her  defence  and  defraying  the  costs  and  expenses  attending 
the  same.  That  your  petitioner  has  been  informed  and  verily 
believes  that  her  husband  has  real  estate  and  personal  property 
to  a  large  amount,  and  amply  sufficient  to  enable  him  to  advance 
to  your  petitioner  such  sums  as  may  be  necessary  for  the  above- 
mentioned  purposes. 

She  therefore  prays,  that  an  order  of  this  court  may  be  made 
requiring  the  said  to  pay  to  her  a  proper  allowance  for 

her  support  and  maintenance  until  the  termination  of  this  suit ; 
and  also  to  pay  forthwith  a  proper  sum  for  counsel  fees  in 
defending  this  suit  until  its  termination.  And  she  will  ever 
pray,  &c. 

{Signature  of  solicitor  and  counsel.) 

court  to  look  into  the  merits  of  the  that  it  is  by  uo  means  probable  that 

case  as  thus  far  disclosed.     Begbie  v.  the   petitioner  will   succeed   in  her 

Begbie,   3    Hal.    Ch.   98 ;    Glasser   v.  suit.     Such  denial,  however,  will  not 

Glasser,  1  Stew.  Eq.  22.     In  a  suit  for  prejudice  anv  future  application  on 

divorce  a  mensa  et  thoro,  an  applica-  her   part,  either   as  to   the  time  or 

tion  for  alimony  pendente  life  will  be  amount   of   allowance,   in    case   she 

denied  where  the  answer  and  affidav-  should     be     ultimately     successful. 

its  of  the  defendant  clearly  outweigh  Glasser  v.  Glasser,  supra. 
those  of  the  petitioner,  and  indicate 


ALIMONY.  467 

Affidavit  of  verification  of  foregoing  petition. (a) 

(  Venue.) 

,  the  above-named  petitioner,  being  duly  sworn  accord- 
ing to  law,  on  her  oath  saith — that  the  matters  and  things  set 
forth  in  the  foregoing  petition  are  true,  to  the  best  of  her  knowl- 
edge and  belief. 

Sworn,  &c.  {Signature.) 

Order  of  reference  as  to  alimony.(6) 

(Title  of  cause.) 
This  matter  being  opened  to  the  court,  &c.,  and  on  reading 
and  filing  the  petition  of  the  said  defendant,  and  the  affidavit 
thereto  annexed,  it  appearing  that  due  notice  of  motion  has  been 
given  to  the  said  ,  (or,  "and  on  hearing  the  arguments  of 

the  counsel  of  the  respective  parties:")  It  is,  on  this,  &c.,  on 
motion,  &c.,  ordered,  that  it  be  referred  to  ,  one  of  the 

special  masters  of  this  court,  to  inquire  and  report  what  is  a 
reasonable  sum  to  be  allowed  to  the  said  defendant  for  her  sup- 
port and  maintenance  pending  this  suit;  and  also  what  is  a 
reasonable  sum  to  be  allowed  to  her  for  counsel  fees  to  defray 
the  necessary  costs  and  expenses  of  her  defence  in  this  suit;  and 
-that  said  master  report  to  this  court  with  all  convenient  speed. 

Order  for  alimony,  &c.(c) 

( Title  of  cause,  and  mentioning  petition.) 
This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  above-named  defendant,  in  the  presence  of  ,  of 

(a)  The  answer  of  the  wife  should  settled  by  the  court,  without  a  refer- 
be  put  in  without  oath,  and  the  denial  ence,  whenever  the  facts  are  suffi- 
of  the  adultery  should  be  introduced  ciently  before  it.  Hammond  v.  Ham- 
in  the  petition  for  alimony,  and  the  mond,  Clarke  151.  The  court,  on  the 
petition  be  under  oath.  Bray  v.  coming  in  of  the  report  as  to  the 
Bray,  2  Hal.  Ch.  27.  amount    of    alimony,   may    order   a 

(6)  The  court  may  make  the  allow-  larger  sum   to    be   allowed   than   is 

ance  either  with  or  .without  a  refer-  reported.      Galinger    v.     Oalinger,   4 

ence  to  a  master.     Amos  v.  Am^s,  3  Lans.  473;  S.  C,  61  Barb.  31. 

Gr.  Ch.  171 ;    Walling  v.   Walling,  1  (c)  The  allowance  to  the  wife  will 

C.  E.  Or,  389.    The  amount  may  be  be  moderate.    No  inducement  should 


468  .    FORMS  OF   PLEADINGS. 

counsel  with  the  said  ,  {or  as  the  ease  may  be,)  and  the 

petition  of  the  said  defendant  and  the  affidavits  taken  for  the 
purposes  of  this  application  having  been  read,  and  the  argu- 
ments of  the  respective  counsel  having  been  heard  aud  consid- 
ered, and  it  appearing  to  the  Chancellor  that  the  prayer  of  the 
said  petition  should  be  granted :    It  is,  on  this  day  of 

,  &c.,  on  motion,  &c.,  ordered,  that  the  said  pay 

to  the  said  the  sum  of  dollars  per  week,  at  the 

termination  of  each  and  every  week,  from  the  date  of  this  order, 
for  her  maintenance  and  support,  until  the  further  order  of  this 
court  in  the  premises ;  and  also  that  he  pay  to  her  solicitor  and 
counsel  the  sum  of  dollars  as  a  counsel  fee  for  defending 

the  suit  above  mentioned,  together  with  the  costs  of  this  order^ 
to  be  taxed. 

Bill  for  alimony  under  the  statute.(a) 

(Address.) 
Complaining,  shows  unto  your  Honor  your  oratrix,  ,  of 

,  in  the  township  of  ,  in  the  county  of  ,. 

in  this  state,  that  on  the  day  of  ,  eighteen  hundred 

be  held  out  for  the  oppression  of  the  may  decree  and  order  such  suitable 
husband.  Amos  v.  Amos,  3  Gr.  Ch.  support  and  maintenance  to  be  paid 
171.  Such  allowance  for  temporary  and  provided  by  the  husband  for  the 
alimony  pending  the  suit  will  be  wife  and  her  children,  or  any  of  them 
limited  to  the  actual  wants  of  the  wife,  by  that  marriage,  or  out  of  his  prop- 
until  the  result  of  the  suit  in  her  favor  erty,  and  for  such  time  as  the  nature 
establishes  her  right  to  a  more  liberal  of  the  case  and  the  circumstances  of 
allowance.  Germond  v.  Germond,  4  the  parties  render  suitable  and  proper, 
Paige  643.  In  Purcell  v.  Pureell,  3  in  the  opinion  of  the  court,  and  to 
Edw.  Ch.  194,  it  was  held  that  when  compel  the  defendant  to  give  reason- 
the  husband  is  complainant  his  poverty  able  security  for  such  maintenance 
will  not  protect  him  from  supplying  and  allowance,  and  from  time  to  time 
money  for  temporary  support,  and  to  to  make  such  further  orders  touching 
enable  the  wife  to  make  a  defence;  the  same  as  shall  be  just  and  equitable, 
that  he  must  conform  to  the  general  and  to  enforce  such  decree  and  orders 
rule  or  abandon  his  suit.  by  the  sequestration  of  the  defendant's 
(a)  In  case  a  husband,  without  any  personal  estate  and  the  rents  and  profits 
justifiable  cause,  shall  abandon  his  of  his  real  estate,  and  to  appoint  a 
wife  or  separate  himself  from  her  and  receiver  thereof,  or  by  such  other  law- 
refuse  or  neglect  to  maintain  and  pro-  ful  means  as  is  usual  according  to  the 
vide  for  her,  the  Court  of  Chancery  practice  of  the  court ;  but  during  the 


ALIMONY.  469 

and  ,  she  was  married  to  her  present  husband,  , 

then  a  widower  with  three  children,  two  of  whom  resided  at 
home  with  their  father. 

That  prior  to  said  marriage,  which  took  place  in  ,  in 

the  county  of  ,  in  this  state,  your  oratrix  was  a  dress- 

maker, and  followed  her  trade  in  aforesaid  for  several 

years,  to  wit,  twenty  years  next  preceding  her  marriage,  whereby 
she  earned  a  comfortable  living. 

That  soon  after  her  marriage  with  her  said  husband,  , 

he  took  your  oratrix  to  his  house  in  aforesaid,  where  she 

lived  with  him,  except  for  a  few  months  in  the  year  eighteen 
hundred  and  ,  until  the  day  of  eighteen 

hundred  and  ,  when  he  deserted  her  under  the  circum- 

stances hereinafter  mentioned. 

That  when  she  entered  the  house  of  her  said  husband  as  his 
wife,  she  relinquished  the  pursuit  of  her  trade  as  a  dressmaker 
and  gave  her  faithful  attention  to  his  children  and  her  domestic 
duties. 

That  your  oratrix  found  the  house  of  her  said  husband 
scantily  supplied  with  furniture  and  almost  destitute  of  linen 
and  bed- clothing,  and  in  order  to  make  his  home  and  the  home 

time  such  maintenance  shall  be  allowed  C.  E.  Gr.  162.      A   mere   allegation 

by  the  deci-ee  or  sentence  of  the  court,  that  the  husband  does  not  "  provide 

the  husband  shall  not  be  chargeable  his  wife  with  support,''  will  not  entitle 

with  her  debts.     Rev.,  '■^Divorce"  |  20.  her  to  relief.     Davis  v.  Davis,  4  C.  E. 

The  allowance  may  be  declared  to  be  Gr.  180.     On  a  bill  for  alimony  and 

a  lien  on  the  husband's  real  estate  in  maintenance,   a   motion   for   alimony 

this  state,  and  he  may  also  be  required  pendente  lite  and  counsel  fees  for  com- 

to  give  security  for  its  punctual  pay-  plainant's  counsel  may  be  denied,  if 

ment.     Snover  v.  Snover,  2  Beas.  251.  the  case,  as  it  appears  at  the  time  of 

The  Court  of  Chancery  has  no  power  the  making  of  the  motion,  shows  that 

to  decree  alimony,  except  as  incident  there  is  no  foundation   for  the  bill, 

to  divorce,  ezcept  in  the  single  case  Dougherty  v.  Dougherty,  4   Sal.    Ch. 

provided  for  by  the  twentieth  section  540 ;  see  Kirrigan  v.  Kirrigan,  2  Mc- 

of  the  statute  concerning  "  Divorces."  Cart.  146.     See  Miller  v.  Miller,  Sax. 

Yule    V.     Yule,   2    Slock.    138.      The  386,  where  it  is  said  that  on  a  bill  filed 

abandonment    or   separation    on   the  for  divorce  and  alimony  the  court  has 

part  of  the  husband,  as  well  as  the  jurisdiction  todecree alimony, although 

refusal   to  support  the  wifp,  must  be  the  evidence  does  not  warrant  a  decree 

■charged  in  the  bill  and  be  sustained  of  divorce, 
-by  the  proof.    Anshutz  v.  Anshuiz,  1 


470  FORMS   OF   PLEADINGS. 

of  his  children  and  your  oratrix  comfortable,  your  oratrix 
removed  thereto  the  furniture,  carpets,  beds  and  bedding  which 
she  had  acquired  for  herself  while  keeping  house  prior  to  her 
said  marriage. 

That  your  oratrix  and  her  husband  lived  together  very  har- 
moniously for  a  few  months,  when  he  began  to  treat  her  unkindly 
and  with  indignity,  and  in  several  instances  with  great  want  of 
feeling  and  with  harshness,  and  neglected  to  provide  for  her. 

That  during  the  winter  of  eighteen  hundred  and  ,  his 

conduct  in  these  particulars  became  so  intolerable  to  your  oratrix, 
that  on  or  about  the  day  of  ,  eighteen  hundred  and 

,  she  was  compelled  to  leave  her  said  husband  and  resume 
her  trade  for  a  living;  and  that  she  continued  to  live  apart  from 
her  said  husband  until  the  day  of  ,  eighteen  hundred 

and  ,  when  she  was  induced  by  her  said  husband  to  return 

to  his  home,  and  that  she  continued  to  live  with  him  until  the 
said  day  of  ,  eighteen  hundred  and 

That  soon  after  her  return  to  her  said  husband,  he  fell  again 
into  his  habits  of  ill-treatment  of  your  oratrix,  and  failed  to 
make  proper  provision  for  her  wants,  rendering  it  impossible  for 
her  to  enjoy  any  domestic  happiness  or  to  make  proper  provision 
for  herself. 

And  your  oratrix  further  shows,  that  on  or  about  the 
day  of  ,  eighteen  hundred  and  ,  her  said  husband,, 

after  he  and  your  oratrix  had  retired  to  bed,  got  out  of  bed  and 
left  the  room  and  went  into  another  room  and  slept  by  himself; 
and  that  since  that  time  he  has  continued  to  occupy  a  separate 
apartment,  leaving  your  oratrix,  who  is  frequently  in  delicate 
health  and  is  timid,  to  sleep  alone  in  another  part  of  the  house. 

And  your  oratrix  further  shows  unto  your  Honor,  that  on  or 
about  the  day  of  ,  eighteen  hundred  and  , 

she  asked  her  said  husband  to  get  some  potatoes  and  coifee,  and 
that  he  replied,  "  Get  them  yourself;  I  never  intend  to  do  any- 
thing more  for  you;  you  are  a  dirty,  low-lived  loafer;"  and  he 
ordered  your  oratrix  to  get  out  of  the  house;  and  that  since  that 
date  he  has  never  spoken  to  her,  except  on  the  night  of  the 
day  of  ,  eighteen  hundred  and  ,  when  he 


ALIMONY.  471 

ordered  out  of  your  oratrix's  bed  and  out  of  the  house  a  young 
lady  who  had  come  in  to  keep  your  oratrix  company  through 
the  night. 

And  your  oratrix  further  shows  unto  your  Honor,  that  since 
the  said  day  of  ,  eighteen  hundred  and  ,  her 

said  husband  and  his  daughter  (the  only  child  living  at  home 
with  her  father)  have  taken  all  their  meals  out  of  the  house  and 
at  the  house  of  a  neighbor ;  and  that  since  that  date  he  has  made 
no  provision  for  the  wants  of  your  oratrix ;  but,  on  the  contrary, 
he  has  removed  from  the  house  all  the  provisions  therein  con- 
tained on  the  said  day  of  ,  and  since  that  date  he 
has  removed  all  the  dishes  and  cooking  utensils  therefrom,  leav- 
ing your  oratrix  without  the  means  of  properly  preparing  such 
food  as  she  might  be  able  to  purchase  with  her  scanty  means. 

And  your  oratrix  further  shows  unto  your  Honor,  that  she 
has  been  informed  and  believes  it  to  be  true,  and  therefore 
charges,  that  her  said  husband  has  rented  the  house  (wherein 
your  oratrix  now  occupies  a  sleeping  apartment,)  to  two  families, 
who  propose  to  move  into  it  on  the  day  of  next, 

and  that  from  the  course  pursued  by  her  said  husband,  she 
really  believes  that,  at  that  time,  he  will  drive  your  oratrix  from 
the  said  house. 

And  your  oratrix  further  shows,  that  she  is  now  sleeping 
alone  with  her  infant  children  in  the  house  of  her  said  husband, 
or  staying  with  friends  ;  and  that  she  is  now  depending  on  what 
she  can  earn  by  dressmaking,  which  is  very  little,  for  the  reason 
that  she  does  not  enjoy  good  health,  and  has  lost  her  custom  by 
reason  of  her  marriage  with  her  eaid  husband.  By  reason  of  all 
of  which  facts  your  oratrix  charges  that  her  said  husband  has, 
without  any  justifiable  cause,  abandoned  and  separated  himself 
from  your  oratrix,  his  wife,  and  has  refused  and  neglected  to 
provide  for  her. 

That  there  are  now  living,  as  the  issue  of  the  marriage  of 
your  oratrix  with  the  said  defendant,  the  following- named 
children,  to  wit,  {name  them,)  all  of  whom  are  ucder  the  age  of 
seven  years,  and  reside  with,  and  are  maintained  by,  your 
oratrix. 


472  FORMS   OF   PLEADINGS. 

And  your  oratrix  further  shows  unto  your  Honor,  that  said 
is  the  owner  of  a  house  and  lot  and  carpenter  shop, 
which,  together,  are  worth  twenty- five  hundred  dollars,  and 
which  are  mortgaged  for  only  seven  hundred  dollars,  besides 
personal  property  owned  by  him,  the  amount  of  which  your 
oratrix  has  no  means  of  ascertaining ;  and  that  he  has  a  monthly 
income,  as  your  oratrix  has  been  informed  and  verily  believes  to 
be  true,  of  dollars  from  the  ,  in  whose  employ  as 

master- carpenter  he  is,  besides  an  income  from  the  manufacture 
of  water-tanks,  tubs  and  buckets,  in  which  he  engages  at  odd 
times,  and  the  annual  interest  arisiDg  from  a  legacy  of  one 
thousand  dollars  left  him  by  his  half-brother,  as  your  oratrix 
has  been  informed  and  believes,  so  that  he  is  abundantly  able  to 
make  ample  provision  for  the  support  of  your  oratrix  in  a 
manner  suited  to  her  position. 

And  your  oratrix  further  shows  unto  your  Honor,  that  she 
has  frequently  applied  to  the  said  and  requested  him  to 

provide  for  her  support  in  a  manner  suited  to  his  means  and  her 
-condition  in  life,  but  he  has  wholly  refused  so  to  do. 

In  consideration  whereof,  and  forasmuch  as  your  oratrix  can 
only  be  relieved  in  this  court :  To  the  end,  therefore,  that  the 
said  may  answer  the  premises,  but  without  oath,  and  that 

he  may  be  ordered  and  decreed  to  provide  such  suitable  support 
and  maintenance,  to  be  paid  by  him  for  your  oratrix  out  of  his 
property,  for  such  time  as  the  nature  of  the  case  and  the  circum- 
stances of  the  parties  render  suitable  and  proper  in  the  opinion 
of  the  court;  and  that  the  said  defendant  may  be  compelled  to 
give  reasonable  security  for  such  maintenance  and  allowance,  and 
to  pay  the  same  from  time  to  time  under  the  compulsory  orders 
of  this  honorable  court,  as  provided  by  the  statute ;  and  that  he 
may  be  required  to  pay  to  her  a  reasonable  weekly  allowance 
and  a  proper  amount  for  counsel  fees  during  this  suit;  and  that 
she  may  have  such  other  or  further  relief  in  the  premises  as  to 
your  Honor  shall  seem  meet. 

May  it  please  your  Honor,  the  premises  considered,  to  grant 

unto  your  oratrix  a  writ  of  subpoena,  to  be  directed  to  the  said 

,  therein  and  thereby  requiring  him,  on  a  certain  day 

and  under  a  certain  penalty  therein  to  be  expressed,  to  be  and 


ALIMONY.  473 

appear  before  your  Honor  in  this  honorable  court,  then  and 
there  to  answer  the  premises,  and  to  stand  to  and  abide  and  per- 
form such  order  and  decree  therein  as  to  your  Honor  may  seem 
meet. 

[Signature  of  solicitor  and  counsel  with  complainant) 

Order  for  security  for  costs  on  bill  for  alimony.(a) 

(Title  of  cause.) 

It  appearing  to  the  court  that  no  answer  has  been  as  yet  filed 
to  the  bill  of  complaint  in  this  cause,  and  upon  good  cause  shown 
therefor:    It  is,  on  this,  &c.,  on  motion  of  ,  of  counsel 

with  the  defendant,  ordered,  that  the  said  complainant  give  a 
bond  to  the  defendant  in  the  sum  of  one  hundred  dollars,  by  one 
or  more  sufficient  freeholders,  with  condition  to  pay  such  costs 
as  shall  or  may  be  awarded  by  the  court  to  be  paid  to  the  said 
defendant. 

And  it  is  further  ordered,  that  until  such  bond,  (which  is  to 
be  approved  by  one  of  the  special  masters  of  this  court),  shall  be 
given  and  filed,  all  further  proceedings  in  this  cause  to  be  stayed. 

Decree  for  alimony  on  proceedings  ex  parte.(6) 
{Title  of  cause.) 

This  cause  coming  on  to  be  heard  in  the  presence  of,  &c., 
'{as  in  usual  form:)   It  is,  on  this,  &c.,  by  his  Honor,  , 

Chancellor,  &c.,  by  virtue  of  the  power  and  authority  of  this 
court   and   of  the   statute   in   such   case   made  and   provided, 

(a)  It  shall  and  may  be  lawful,  in  estate  of  the  husband.  Calame  v.  Cb- 
suits  for  alimony  under  the  twentieth  lame,  9  C.  E.  Gr.  440;  10  C.  E.  Gr. 
section,  for  the  Chancellor,  if  applied  548.  Either  party  may  apply  by 
for  before  answer  filed,  to  order  a  bond  petition  for  an  alteration  in  the  allow- 
to  be  given  in  one  hundred  dollars,  ance.  Miller  v.  Miller,  Sax.  387; 
by  one  or  more  sufficient  freeholders,  Snorer  v.  Snorer,  2  Beas.  261.  There 
with  condition  to  pay  such  costs  as  is  no  fi.xed  general  rule  by  which  to 
may  be  awarded  by  the  court  to  be  graduate  the  allowance  for  alimony, 
paid  by  the  defendant.  Bev.,  "Bi-  but  every  case  must  depend  on  its 
vorce,"  I  21.  own   peculiar  circumstances.      Rich- 

(6)  Under  the  statute  of  New  Jer-  mond  v.  Richmond,  1  Gr.  Ch.  90.     See 

sey,  alimony  cannot   be   given   in   a  Bauere  v.  Bauere,  4  John.   Ch.  188, 

gross  sum,  nor  in  a  portion  of  the  real  198. 


474  FORMS   OF   PLEADINGS. 

hereby  ordered,  adjudged  and  decreed,  that  [if  there  he  a 
prayer  therefor  in  the  bill)  the  said  complainant  and  defendant 
be  divorced  from  bed  and  board  forever,  {or  for  a  limited  time, 
as  the  case  may  be;)  provided,  however,  that  the  said  parties 
may,  at  any  time  hereafter,  by  their  joint  petition,  apply  to  this 
court  to  have  this  decree  modified  or  discharged. 

And  it  is  further  ordered  and  decreed,  that  the  defendant  pay 
to  the  complainant  the  sum  of  dollars  per  week,  at  the 

termination  of  each  and  every  week,  from  the  date  of  this  decree, 
for  the  support  and  maintenance  of  the  complainant  and  the 
children  of  the  marriage  named  in  the  said  bill  of  complaint ; 
and  that  he  give  bond  to  the  complainant  in  the  sum  of 
dollars,(a)  to  be  approved  as  to  form  and  the  security  therein  by 
,  one  of  the  special  masters  of  this  court,  for  the  payment 
thereof. 

And  it  is  further  ordered  and  decreed,  that  the  said  complain- 
ant have  the  care  and  custody  of  the  said  children  of  the  mar- 
riage, until  the  further  order  of  this  court. 

And  it  is  further  ordered  and  decreed,  that  the  defendant  pay 
to  the  said  complainant  or  her  solicitor  the  costs  of  this  suit  to 
be  taxed,  and  a  counsel  fee  of  dollars ;  and  that  execution 

issue  therefor,  according  to  the  practice  of  this  court. 

Bill  to  annul  a  mamage.(6) 

{Address.) 
Complaining,  shows  unto  your  Honor  your  oratrix,  ^ 

an  infant  under  the  age  of  eighteen  years,  by  ,  her  next 

friend,  of,  &c.,  {residence.) 

(u)  Generally  in  a  sum  equal  in  the  cohabitation.     Selah  v.  Selah,  8  C.  JS. 

aggregate  to  two  years'  alimony.  Gr.  185.    Or  a  marriage  performed  in 

(b)   The  Court  of   Chancery  wi'l,  jest,  although  the  ceremony  be  legal, 

outside   of  its   statutory  jurisdiction,  McClurg  v.  Terry,  6   C.  E.   Gr.  225, 

annul   a   contract  of    marriage  only  Fraud  practiced  upon  the  husband  by 

where  the  contract  is  void,  not  where  the  wife,  under  certain  circumstances, 

it  is  voidable  merely.    Anon.,  9  C.  E.  will  entitle  him  to  a  decree  of  nullity 

Gr.  19.     It  will  declare  void  a  mar-  of  marriage,  where  he  has  not  acqui- 

riage  on  the  ground  of  the  party's  in-  esced,  but  left  his  wife  as  soon  as  the 

toxication  at  the  time  of  the  ceremony,  fraud  was  discovered.     Carris  y.  Car- 

and  that  it  was  not  consummated  by  ris,   9    C.   E.    Gr.   516.     A   court   of 


DIVORCE.  475- 

That  your  oratrix  resides  in  ,  and  has  so  resided  for 

years  last  past.     That  in  the  month  of  ,  &c.,  she 

became  acquainted  with  one  ,  also  a  resident  of 

And  your  oratrix  further  shows,  that,  &c.,  {here  insert  all  the 
material  facts  and  circumstances  necessary  to  be  proved.) 

And  your  oratrix  further  shows,  that  she  did  not,  on  said 
{date  of  pretended  marriage^)  nor  has  she  at  any  time  since, 
cohabited  with  said  {defendant)  as  his  wife,  nor  in  any  manner 
consummated  said  pretended  or  mock- marriage. 

And  your  oratrix  further  shows,  that  she  is  desirous  of  having 
said  marriage  declared  null  and  void  by  the  decree  of  this  court. 

In  consideration  whereof,  and  forasmuch  as  your  oratrix  is 
only  relievable  in  this  court:  To  the  end,  therefore,  that  the 
said  may,  upon  his  oath,  make  full  and  perfect  answer  to 

all  and  singular  the  premises,  and  that  the  said  pretended  or 
mock-marriage  may  be  declared  null  and  void.  {If  an  injunc- 
tion be  necessary  to  prevent  the  record  of  such  marriage,  make 
the  person  who  performed  the  marriage  ceremony  a  party,  and 
add,  "  and  that  said  may  be  restrained  by  the  order  of 

this  court  from  making  said  ceremony  a  matter  of  record  in  {the 
proper  office)  or  elsewhere.  And  that  your  oratrix  may  have 
such  further  or  other  relief  as  the  nature  of  her  case  requires 
and  as  shall  be  agreeable  to  equity.") 

May  it  please  your  Honor,  {prayer  for  subposna.){a) 

equity  will  not  annul  a  marriage  con-  contract  and  the  character  of  the  re- 
tract as  having  been  fraudulent,  upon  lief  sought,  there  is  abundant  reason 
the  mere  admission  by  the  defendant  for  requiring  in  such  cases  that  it 
of  the  facts  charged  in  the  bill.  Mont-  should  appear  to  the  satisfaction  of 
gomery  V.  Montgomery,  3  Barb.  Ch.  the  court  that  the  proceeding  is  not  the 
132.  As  to  a  marriage  procured  by  result  of  collusion.  In  all  such  cases 
force  or  fraud,  see  2  Kent's  Com.  77.  it  must  appear  to  the  satisfaction  of 
(a)  In  (Sic^'/es  V.  Carson,  11  C.E.Or.  the  court  that  the  complaint  is  not 
442,  wJiich  was  a  suit  brought  to  an-  made  by  collusion,  for  the  purpose  of 
nul  a  marriage  contract,  the  Chancel-  annulling  the  marriage,  but  in  truth 
lor  says :  "Though  the  bill  is  not  filed  and  good  faith  for  the  cause  alleged 
for  divorce,  and  is  not  within  the  stat-  in  the  bill." 
ute,  yet  in  view  of  the  nature  of  the 


476 


FORMS   OF   PLEADINGS. 


Decree  for  nullity  of  marriage. 

{Title  of  cause.) 
This  cause  coming  on  to  be  heard,  &c.,  {proceed  as  inform  on 
page  180,  and  add,  after  first  line  on  that  page,)  "and  the  said 
Chancellor  does,  by  virtue  of  the  power  and  authority  of  this 
court,  hereby  order,  adjudge  and  decree  accordingly;  and  it  is 
further  ordered,  adjudged  and  decreed,  that  the  said  ceremony 
of  marriage  between  the  said  and  said  be  deemed 

and  taken  in  all  courts  of  law  and  equity  and  in  all  places  to  be 
null  and  void ;  that  the  said  complainant  and  defendant  did  not 
thereby  consent  in  marriage,  and  that  they  are  now  each  unmar- 
ried."   {Add  injunction  according  to  prayer  of  hill,  if  necessary.) 


HABEAS  CORPUS. 

Petition  for^habeas  corpus  ad  subjiciendum.(a) 

{Address) 
The  petition  of  ,  of  the  city  of  ,  in  the  State  of 

,  respectfully  showeth,  that  your  petitioner  is  in  the  forty- 


(a)  The  proceeding  bj  habeas  corpus 
is  regulated  by  the  statute  known  as 
the  "Habeas  Corpus  Act,"  which  pre- 
scribes at  length  and  with  much  detail 
the  persons  who  are  entitled  to  prose- 
cute the  remedy,  the  oflBcers  who  may 
entertain  it,  the  mode  of  proceeding 
upon  it,  the  extent  of  relief  which 
may  be  granted,  Ac,  For  these  pro- 
visions the  statute  itself  should  be 
consulted.  See  Eev.,  ^'Habeas  Corpus," 
p.  468,  et  seq.  But  the  powers  of  the 
Chancellor  are  neither  taken  away  nor 
abridged  nor  affected  by  this  statute. 
Her.  Sup.,  "Habeas  Corpus,"  |  2. 
When  any  husband  and  wife  shall 
live  in  a  state  of  separation,  without 
being  divorced,  and  shall  have  any 
minor  child  or  children  of  the  mar- 
riage, the  Chancellor,  or  the  Supi'eme 
iCourt,  or  any  justice  thereof,  upon  the 


said  child  or  children  being  brought 
before  them  upon  habeas  corpus,  shall 
make  an  order  for  the  access  of  the 
mother  to  her  infant  child  or  child- 
ren, at  such  times  and  under  such  cir- 
cumstances as  they  may  direct;  and. 
if  the  said  child  or  children  be  within 
the  age  of  seven  years,  shall  make  an 
order  that  the  said  child  or  children 
be  delivered  to  and  remain  in  the 
custody  of  the  mother  until  said  child 
or  children  shall  attain  such  age,  un- 
less said  mother  shall  be  of  such 
character  and  habits  as  to  render  her 
an  improper  guardian  for  said  child 
or  children.  Rev.,  "Infants,"  §  21. 
This  act  is  held  to  take  away  the 
discretion  of  the  Chancellor  as  to  the 
custody  of  infants  under  seven  years 
of  age.    JBennet  v.  Bennet,  2  Beas.  114. 


HABEAS   CORPUS.  477 

first  year  of  his  age,  is  a  minister  of  the  Gospel  in  connection 
with   the  Presbyterian   Church,  and    was   married   to  , 

daughter  of  ,  of  ,  in  the  county  of  ,  in  the 

State  of  ,  on  the  day  of  ,  eighteen  hundred 

and  ;  that  the  said  marriage  was  duly  solemnized  on  the 

day  aforesaid  by  ,  at  ,  in  this  state ;  and,  at  the 

time  of  said  marriage,  your  petitioner  was  a  resident  of  this 
state;  that  after  said  marriage,  up  to,  on  or  about  the 
day  of  ,  eighteen  hundred  and  ,  your  petitioner  and 

said  lived  together  as  husband  and  wife,  and  had  born  to 

them,  as  the  fruit  of  said  marriage,  the  following  children,  now 
living,  to  wit,  ,  now  in  the  thirteenth  year  of  her  age ; 

,  now  in  the  eleventh  year  of  her  age ;  ,  now  in 

the  ninth  year  of  his  age ;  ,  now  in  the  seventh  year  of 

his  age,  and  ,  now  in  the  fifth  year  of  his  age ;  and  that 

since  the  day  and  year  last  aforesaid,  said  has  also  borne, 

as  your  petitioner  has  been  credibly  informed  and  believes, 
another  child,  now  in  the  second  year  of  his  age,  who  is  still 
living,  but  his  exact  age  and  his  name  are  unknown  to  your 
petitioner. 

And  your  petitioner  further  shows,  that  on  the  said 
day  of  ,  eighteen  hundred  and  ,  the  said  , 

without  any  reasonable  or  just  cause,  deserted  your  petitioner, 
and  left  his  residence  in  the  said  city  of  ,  and  took  with 

her,  without  the  knowledge  or  consent  of  your  petitioner,  the 
five  children  first  above  mentioned,  and  went  with  them  to  the 
residence  of  her  said  father,  at  the  said  village  of  ,  and 

has  there  lived  with  said  children  ever  since,  in  a  state  of  sepa- 
ration from  your  petitioner,  without  his  being  permitted  to  see 
or  visit  her,  although  he  on  one  occasion  since  said  separation, 
went  to  for  the   purpose  of  visiting   his  said   wife  and 

children,  on  which  occasion,  however,  he  was  not  permitted  to 
see  her,  but  was  allowed  to  see  and  converse  with  the  first  five 
of  said  children ;  and  that  that  is  the  only  occasion  since  said 
separation  that  your  petitioner  has  seen  any  of  said  children. 

And  your  petitioner  further  shows,  that  he  is  credibly 
informed  and  believes  that  the  said  children  are  now  in  the 
custody  of  the  said  and  your  petitioner's  said  wife,  and 


478  FORMS   OF   PLEADINGS. 

are  kept  away  and  detained  from  the  lawful  custody  and  care 
of  your  petitioner,  who  is  now,  and  since  said  separation  has 
been,  denied  access  to  them. 

And  your  petitioner  further  shows,  that  he  is  advised  and 
believes,  that  by  the  law  of  this  state  he  is  entitled  to  have  the 
absolute  care  and  custody  of  the  three  elder  of  said  six  children, 
who  are  above  the  age  of  seven  years,  and  to  have  reasonable 
access,  at  proper  and  convenient  times,  to  the  others,  until  they 
shall,  respectively,  attain  the  age  of  seven  years,  and  their  care 
and  custody  also,  after  having  arrived  at  that  age.  Your  peti- 
tioner therefore  prays,  that  a  writ  of  habeas  corpus  may  be 
issued  out  of  this  honorable  court,  directed  to  the  said 
and  ,  requiring  them  to  have  the  bodies  of  the  said  six 

children  before  your  Honor  in  this  honorable  court,  at  a  certain 
day  and  place  to  be  expressed  therein,  with  the  cause  of  their 
taking  and  detention ;  and  to  do,  submit  to  and  receive  whatso- 
ever this  honorable  court  shall  then  and  there  consider  of  them 
in  this  behalf. 

And  your  petitioner  will  ever  pray,  &c. 

[Signature.) 

Affidavit  of  verification. 

State  of  ,    1    ^^ 

county  of  ,    J 

,  the  petitioner  mentioned  in  the  above  petition,  makes 
oath  and  says — that  the  matters  and  things  set  forth  in  said 
petition,  so  far  as  they  relate  to  his  own  acts  and  deeds,  are  true ; 
and  that  so  far  as  they  relate  to  the  acts  and  deeds  of  others,  he, 
the  deponent,  believes  them  to  be  true. 

[Jurat.)  [Signature.) 

Writ  of  habeas  corpus  ad  subjiciendum.   New  Jersey, 
SB. — The  State  of  New  Jersey  to  and  — Greeting : 

We  command  you  that  you  have  the  bodies  of  ,  by  you 

restrained  of  their  liberty  and  detained  in  your  custody, 
[l.  s.]     as  is  said,  by  whatsoever  names  they  may  be  called  and 
known,  together  with  the  day  and  cause  of  their  being 
taken  and  detained  by  you,  or  either  of  you,  before  our  Chan- 
cellor, at  the  state-house,  in  the  city  of  Trenton,  on  the 


'    \ss. 


HABEAS  CORPUS.  479 

day  of  instant,  at  ten  o'clock  in  the  forenoon  of  said  day ; 

then  and    there  to  do,  submit  to  and   receive  whatsoever  our 

said  Chancellor  shall  then  and  there  consider  in  that  behalf. 

Witness  ,  Chancellor  of  the  State  of  New  Jersey,  at 

Trenton,  the  day  of  ,  eighteen  hundred  and 

Clerk. 
Solicitor. 

JEndorsement. 

By  the  statute.     I  allow  this  writ.     Let  it  be  sealed. 

Chancellor. 
Proof  of  service  of  writ. 

State  of 

county  of 

,  sheriff  of  said  county,  being  duly  sworn  according 
to  law,  on  his  oath  saith — that  on  the  day  of  , 

eighteen  hundred  and  ,  he  served  an  original   writ,  of 

which  the  within  is  a  copy,  on  and  ,  by  reading 

the  same  to  them,  and  by  giving  to  and  leaving  with  each  of 
them  an  original  thereof. 

(Jurat.)  (Signature  of  sheriff.) 

Order  for  custody  of  infant. 

{Title  of  cause.) 

The  body  of  ,  an  infant  of  the  age  of  ,  years,  in 

the  writ  of  habeas  corpus  above  mentioned,  having  been  brought 
before  this  court,  at  the  time  and  place  in  said  writ  directed, 
and  the  return  to  said  writ  having  been  read  and  considered, 
and  it  appearing  to  the  Chancellor  that  said  return  does  not  set 
forth  sufficient  cause  for  the  detention  of  the  said  by  the 

respondents,  and  that  the  said  petitioner  is  entitled  to  the 
custody  of  the  said  :  It  is,  on  this,  &c.,  ordered,  that  the 

said  do  forthwith  surrender  the  said  unto  the  said 

{the  petitioner.) 


480 


FOEMS   OF   PLEADINGS. 


INTERPLEADER  (a) 

Bill  of  interpleader. 

In  Chancery  of  New  Jersey. 

To  His  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

Complaining,  show  unto  your  Honor  your  orators,  ,  a 

body  corporate  under  and  by  virtue  of  the  laws  of  the  State  of 


(a)  Where  two  or  more  persons 
claim  the  same  thing,  by  different  or 
separate  interests,  and  another  person, 
not  knowing  to  which  of  the  claimants 
he  ought  of  right  to  render  a  debt  or 
duty,  or  to  deliver  property  in  his 
custody,  fears  he  may  be  hurt  by 
some  of  them,  he  may  exhibit  a  bill 
of  interpleader  against  them.  Dan. 
Ch.  Pr.  1560.  The  bill  of  inter- 
pleader is  not  a  proper  remedy  where 
the  complainant  has  any  personal  in- 
terest in  the  question  to  be  settled. 
Lozier  v.  Van  Saun,  2  Gr.  Ch.  325; 
Story's  Eq.  PL,  ?  252.  A  bill  of  in- 
terpleader is  only  proper  when  there 
is  a  claim  by  diftferent  parlies  to  the 
same  fund  or  assets  in  the  hands  of  a 
third  party,  for  whicli  he  has  a  right 
to  ask  to  be  discharged.  LeddeV»  Ex'r 
V.  Starr,  5  C.  E.  Gr.  21  A.  It  is  proper 
only  Avhere  the  complainant  is  doubt- 
ful to  which  of  the  complainants  the 
debt  or  duty 'is  due.  It  cannot  be 
sustained  where  the  complainant  is 
obliged  to  admit  that  as  to  either  of 
the  defendants,  he  is  a  wrong-doer. 
Mount  Holly  Co.  v.  Ferree,  2  C.  E. 
Gr.  117.  Nor  unless  there  is  a  well- 
founded  apprehension  of  danger  from 
claims  to  the  fund  in  dispute.  Blair 
V.  Porter,  2  Peas.  267.  It  is  essential 
in  every  bill  of  interpleader,  that  the 
complainant  show  tliat  each  of  the 
defendants  claims  such  a  right  as  he 
may  interplead  for.  The  complainant 
must  at  least  show  that  there  is  some 
doubt  to  which  claimant  the  debt  or 
duty  belongs.     If  he  states  a  case  in 


liis  bill,  whicli  shows  that  one  defend- 
ant is  entitled  to  the  debt  and  the 
other  is  not,  both  defendants  may  de- 
mur. Priant  v.  Peed,  1  McCart.  271. 
It  is  not  necessary  or  proper  for  the 
complainant  to  set  out  the  case  of  the 
claimants  ;  he  is  only  to  state  the  claim 
made  to  him.  It  is  enough  for  him  to 
satisfy  the  court  that  there  are  oppos- 
ing claims  against  which  he  is  in 
equity  entitled  to  protection  until  they 
are  settled,  so  that  he  can  pay  with 
safety.  Ibid.  The  bill  should  also 
show  that  there  are  proper  persons  in 
esse  capable  of  interpleading  and  of 
setting  up  opposite  claims.  Story's  Eq. 
PL,  I  295.  A  bill  of  interpleader 
ought  to  be  tiled  before  or  immedi- 
ately after  the  commencement  of  pro- 
ceedings at  law,  and  should  not  be 
delayed  until  after  a  verdict  or  judg- 
ment has  been  obtained.  Cornish  v. 
Tanner,  I  Y.  &  J.  333.  But  it  is  not  a. 
cause  of  demurrer,  that  it  is  filed  after 
judgment  at  law,  no  defence  having 
been  made  against  the  recovery  of  the 
judgment,  where  the  who!e  or  a  part 
of  the  defence  is  equitable  only.  Lozier 
V.  Van  Saun,  2  Gr.  Ch.  325.  The 
complainant  in  a  bill  of  interpleader 
ouglit  by  his  bill  to  offer  to  pay  into 
court  any  money  and  interest  which 
are  due  from  him.  The  omission  of 
such  offer  does  not  render  the  bill 
demurrable;  but  the  fund  must  be 
brought  into  court  before  any  order- 
will  be  made  in  the  cause.  2  Dan- 
Ch.  Pr.  1563. 


INTERPLEADER.  481 

New  Jersey,  that  one  ,  of  the  city  of  ,  in  the  county 

of  ,  and  State  of  New  Jersey,  on  the  day  of  , 

eighteen  hundred   and  ,  opened  an  account  with  your 

orators,  at  their  savings  institution,  situate  in  said  city,  and  did 
then  and  there  deposit  with  them  to  his   credit  the   sum   of 
dollars;  and  they  did,  on  that  day  in  accordance  with 
their  charter,  regulations  and  by-laws,  issue  and  deliver  to  said 

a   deposit-book,   No.  ,  with  said  sum  of 

dollars  credited  therein  to  said  ,  subject,  however,  to  the 

stipulations  and  agreements  governing  payment  of  money,  in 
accordance  with  the  regulations  and  by-laws  and  under  and 
with  full   knowledge  of  said  restrictions,  said  deposited 

said  money. 

That  afterwards,  to  wit,  on  or  about  the  day  of  , 

eighteen  hundred  and  ,  the  said  ,  by  writing,  under 

his  hand,  in  said  deposit-book,  requested  your  orators  to  pay  the 
said  sum  of  money,  or  so  much  or  such  part  thereof  as  then 
remained  standing  to  his  credit  with  your  orators,  to  his  wife, 
,  whenever  she  should  present  said  deposit- book  to  your 
orators;  and  that  between  said  day  of  ,  eighteen 

hundred  and  ,  the  said  did,  at  divers  and  sundry 

times,  produce  said  book  of  deposit  to  your  orators,  and  receive 
thereon  from  them  part  of  said  sum  of  dollars,  deposited 

in  manner  and  form  as  stated  in  section  of  this  bill. 

That  in  and  by  article  of  said   by-laws,  (a  copy  of 

which  said  by-laws  is  in  all  instances  appended  to  and  forms 
part  of  the  deposit-book,)  it  is  declared  that  no  person  shall 
have  the  right  to  demand  any  part  of  the  principal  or  interest 
without  producing  the  original  deposit-book,  in  order  that  such 
payment  may  be  entered  therein. 

That  in  and  by  article  of  said  by-laws,  it  is  declared 

that  "all  deposits  shall  be  entered  in  the  book  of  the  institution,, 
and  a  duplicate  or  pass-book  shall  be  given  to  each  depositor, 
in  which  the  deposit  shall  be  entered,  and  which  shall  be  the 
voucher  for  the  depositor ;  and  possession  of  such  duplicate  or 
pass-book  may  be  treated  by  the  institution  as  authority  to  pay 
the  amount  due  thereby  to  the  person  producing  the  same;  and 

2f 


482  FOEMS   OF   PLEADINGS. 

all  payments  so  made  shall  be  deemed  good  and  valid  payments 
to  the  depositors  respectively." 

That  the  said  ,  on  the  day  of  ,  eighteen 

hundred  and  ,  departed  this  life,  and  his  last  will  and 

testament  was  afterwards  duly  proved  by  ,  the  executor 

therein  named,  before  ,  the  surrogate  of  county, 

who  took  upon  himself  the  burthen  of  the  execution  thereof. 
That  on  the  said  day  of  ,  eighteen  hundred  and 

,  there  was  due  and  owing  on  said  deposit-book  and  the 
books  of  account  of  your  orators,  the  sum  of  dollars,  said 

balance,  with  accrued  interest,  amounting  to  the  sum  of 
dollars.     That  since  the  decease  of  the  said  ,  and  probate 

of  his  said  last  will  and  testament,  to  wit,  on  or  about   the 

day  of  ,  eighteen  hundred  and  ,  the  said 

,  executor  of  said  last  will  and  testament,  demanded  of 
your  orators  payment  of  said  sum  of  dollars,  with  accrued 

interest,  but  did  not  produce  said  deposit-book,  as  required  by 
said  by-laws ;  that  said  payment  was  refused ;  and  that  after- 
wards, to  wit,  on  the  day  of  ,  eighteen  hundred 
and             ,  the  said  executor  commenced  a  suit  at  law  in  the 

Circuit  Court  against  your  orators  for  the  recovery  of 
said  last-mentioned  sum,  with  interest  and  costs  of  suit.  That 
said  has   never   produced   said   deposit-book   to  your 

orators  when  demanding  payment  of  said  moneys,  although  often 
requested  so  to  do  by  them ;  nor  has  he  made  any  legal  or  suffi- 
cient offer  of  security  or  indemnity  in  case  said  payment  should 
be  made  to  him  without  the  production  and  delivery  to  your 
orators  of  said  deposit-book,  in  case  payment  should  be  made. 

That  on  or  about  the  day  of  ,  eighteen  hundred 

and  ,  and  at  divers  and  sundry  times  since  that  date,  the 

said  has  demanded  of  your  orators  payment  of  said  sum 

of  dollars,  and  accrued  interest;    and  has  produced  to 

your  orators  the  said  deposit-book,  and  claimed  and  still  claims 
that,  by  virtue  of  the  possession  thereof  and  said  order  therein 
contained,  signed   by  said  ,  of  the  tenor  and  effect,  as 

claimed  by  her,  that  said  money  was  assigned  and  passed  over  to 
her,  and  that  she  was  entitled  to  draw  and  use  it,  and  that  it  is 
not  subject  to  any  claim  or  demand  of  the  executor  of  said 


INTEKPLEADER.  483 

That  your  orators  have  refused  to  pay  said  money  to  said 
,  and  have  been  notified  by  her  not  to  pay  the  same  to 
any  other  person  or  persons,  at  their  peril. 

That  your  orators  have  been  unable  to  determine  to  whom  of 
right  said  balance  belongs.     The  said  ,  on  the  one  hand, 

claiming  that  she  holds  an  assignment  of  said  pass-book,  and 
the  balance  remaining  due  thereon,  by  virtue  of  said  writing 
contained  therein,  and  to  which  your  orators  have  no  access. 
And  the  said  executor  on  the  other  hand  claiming  that  she  only 
held  a  power  of  attorney  to  draw,  from  time  to  time,  such  sums 
as  she  or  her  husband  might  deem  necessary ;  and  that  by  the 
death  of  said  said  power  of  attorney  became  null  and 

void;   and   that  said   balance  due  on  said  pass-book  of  right 
belongs  to,  and    makes  a  part  of,  the  assets  of  said  estate  of 
,  deceased. 

And  your  orators  further  show,  that  they  have  always  been 
willing  to  pay  the  balance  of  such  money  to  such  person  or  per- 
sons as  should  be  lawfully  entitled  to  receive  the  same,  and  to 
whom  they  could  pay  it  with  safety.  And  they  hereby  oflFer  to 
pay  the  same  into  this  court. 

And  your  orators  further  show,  that  they  do  not  in  any 
respect  collude  with  either  the  said  ,  executor,  &c.,  or  said 

,  touching  the  matters  in  this  cause ;  and  that  they  have 
not  been  indemnified  by  such  defendants,  or  any  or  either  of 
them,  but  bring  this  suit  of  their  own  free  will  and  to  avoid 
being  molested  and  injured  touching  the  matters  contained  in 
this  bill. 

Wherefore,  and  as  your  orators  can  only  have  adequate  relief 
in  this  court :  To  the  end  that  the  said  defendants  may  answer 
this  bill  and  interplead  and  settle  their  right  to  the  said  sum  of 
money ;  [and  that  your  orators  may  be  at  liberty  to  pay  the  same 
into  this  court ;]  and  that  the  said  may  be  enjoined  and 

restrained  from  further  proceeding  in  the  suit  at  law  so  as  afore- 
said commenced  by  him  against  your  orators;  and  that  your 
orators,  upon  payment  into  court  of  such  amount,  and  procuring 
said  defendants  to  interplead  according  to  the  course  of  this 
court,  may  be  decreed  to  be  discharged  from  all  liability  to  such 
defendants  in  the  premises,  and  may  have  all  their  costs  therein  : 


484  FORMS   OF    PLEADINGS. 

May  it  please  your  Honor  to  grant  unto  your  orators  not  only 
the  state's  writ  of  injunction,  issuing  out  of  and  under  the  seal 
of  this  honorable  court,  to  restrain  the  said  ,  executor, 

&c.,  from  proceeding  at  law  against  your  orators  touching  the 
matters  aforesaid,  but  also  a  writ  or  writs  of  subpoena,  also 
issuing  out  of  and  under  said  seal,  to  be  directed  to  the  said 

,  executor  of  ,  deceased,  and  said  ,  therein 

and  thereby  commanding  them  and  each  of  them,  on  a  certain 
day  and  under  a  certain  penalty  therein  to  be  inserted,  to  be  and 
appear  before  your  Honor  in  this  honorable  court,  and  then  and 
there  to  answer  all  and  singular  the  premises  aforesaid,  and  to 
stand  to,  perform  and  abide  such  order,  direction  and  decree 
therein  as  to  your  Honor  shall  seem  meet. 
And  your  orators  will  ever  pray. 

{Signature  of  solicitor  and  counsel  with  complainants.) 

Affidavit  of  non- collusion  to  be  annexed  to  bill 
of  interpleader.(a)     New  Jersey,  S8. —  ,  of  full  age, 

being  duly  sworn  according  to  law,  says — that  he  is  the  presi- 
dent {or  as  the  case  may  be)  of  the  complainants,  and  that  the 
complainants  have  exhibited  their  bill  of  interpleader  against 
the  defendants  in  the  above-stated  cause  without  any  fraud  or 
collusion  between  them  and  the  said  defendants,  but  merely  of 
their  own  accord,  for  relief  in  this  court;  and  that  said 
bill  is  not  exhibited  at  the  request  of  the  said  defendants,  or  of 
any  or  of  either  of  them;  and  that  the  complainants  are  not 
indemnified  by  the  said  defendants,  or  by  any  or  either  of  them. 
And  he  further  says  that  the  complainants  have  exhibited  said 
bill  with  no  other  intent  but  to  avoid  being  sued  or  molested  by 
the  said  defendants  touching  the  matters  contained  in  said  bill. 

(a)  With  a  bill  of  interpleader  the  affidavit  must  show  satisfactorily  why 
complainant  must  file  an  affidavit  that  the  other  complainants  do  not  join, 
there  is  no  collusion  between  him  and  JBraithwaite' s  Pr.  27.  The  affidavit  of 
any  of  the  defendants.  2£it.  PL  39.  the  complainant's  solicitor  is  not,  in 
The  want  of  the  affidavit  denying  col-  general,  sufficient.  Wood  v.  Lyne,  4 
lusion  constitutes  a  ground  of  demur-  De  G.  &  S.  16  For  exceptions  to  this 
rer,  but  it  also  may  be  taken  ad  van-  rule,  see  Dan.  Ch.  Pr.  1563.  An  ob- 
tage  of  at  the  hearing.  Mount  Holly  jection  to  the  form  of  the  affidavit 
Co.y.Ferree,  2  C.  E.  Gr.  117.  AVliere  should  be  made  by  demurrer.  Ham- 
there  are  several  complainants,  tliey  ilton  v.  Marks,  5  He  G.  &  S.  638. 
must  all  join  in  the  affidavit,  or  the 


INTERPLEADER. 


485 


Order  for  injunction  on  bill  of  interpleader.(a) 

{Title  of  cause.) 

On  reading  and  filing  the  bill  of  complaint  in  the  above- 
stated  cause,  and  the  affidavit  thereto  annexed  :  It  is,  on  motion, 
<&c.,  ordered,  that  upon  the  complainant  depositing  in  this  court 
the  sum  of  dollars  mentioned  in  said  bill,  an  injunction 

issue  pursuant  to  the  prayer  of  said  bill. 

Interlocutory  decree  on  bill  of  interpleader.(6) 

{Title  of  cause.) 

This  cause  coming  on  to  be  heard  at  the  present  term 

of  this  court,  in  the  presence  of  ,  of  counsel  ^ith  the 

complainants,  no  person  appearing  for  the  answering  defendants, 


(a)  "Whenever  the  hill  contains  a 
prayer  for  an  injunction,  the  money 
must  be  brought  into  court  before  the 
court  will  ordinarily  act  upon  this 
part  of  the  prayer.  Story's  Eq.  PL,  | 
297.  Generally,  the  complainant  must 
bring  the  money  into  court  before  he 
takes  any  step  in  the  cause.  3Ieux  v. 
Sell,  6  Sim.  175.  The  common  order 
for  an  injunction  on  a  bill  of  this  nature 
is  that  it  issue  upon  the  complainant 
paying  the  money  into  court.  This 
is  a  condition  precedent,  and  an  order 
for  an  injunction  not  containing  it 
will  be  discharged.  If  the  money 
cannot  be  paid  in  in  time  to  stay  a 
trial,  application  should  be  made  to 
vary  the  order  on  the  sjiecial  grounds. 
Siereking  v.  Behrens,  2  Mylne  &  G. 
581 ;  see  Warrington  v.  Wheaistone, 
Jac.  205. 

If  the  complainant  in  a  bill  of  in- 
terpleader has  paid  over  the  money  to 
one  of  the  defendants  under  a  claim 
of  right  to  which  he  was  bound  to 
submit,  this  will  not  preclude  him 
from  sustaining  the  bill.  Xush  v. 
Smith,  6  Conn.  421. 


If  the  defendants,  or  either  of 
them,  deny  the  allegations  in  a  bill  of 
this  nature,  or  set  up  distinct  facts  in 
bar  of  the  suit,  the  complainant  must 
reply  to  the  answer  and  close  the 
proofs  in  the  usual  manner,  before  he 
can  bring  the  cause  to  a  hearing. 
City  Bank  v.  Bangs,  2  Paige  570. 
But  where  the  defendant  admits  the 
facts  stated  in  the  bill,  and  on  which 
the  right  to  file  such  a  bill  rests  and 
sets  up  no  new  facts  as  against  the 
complainant  or  in  bar  of  his  suit,  it 
seems  to  be  sufficient  for  him  to  file  a 
replication  and  to  set  the  cause  down 
for  a  decree  to  interplead,  without 
waiting  until  the  jiroofs  are  taken  as 
between  the  defendants.     Ibid. 

{b)  On  a  bill  of  interpleader  the 
first  decree  is  that  such  bill  is  properly 
filed  and  that  the  defendants  inter- 
plead, and  the  case  then  becomes  a 
case  between  the  defendants  as  be- 
tween a  complainant  and  defendant. 
Rowe  V.  Matteson,  3  Hal.  Ch.  131  ; 
Atkinson  v.  Jfanks,  1  Cowen  691.  And 
where  a  decretal  order  for  interpleader 
has  been  made  on  motion,  a  direction 


486  FORMS   OF   PLEADINGS. 

although  the  cause  was  regularly  set  down  for  hearing ;  and  the 
arguments  of  counsel  for  the  complainants  having  been  heard ; 
and  it  appearing  to  the  court  upon  consideration  thereof  that 
the  complainants  held  the  funds  in  their  bill  mentioned  for  the 
true  owner  without  having  or  claiming  any  right  or  interest 
therein ;  and  that  the  said  funds  have  been  deposited  in  this 
court  to  be  delivered  over  to  whomsoever  may  have  right 
thereto :  It  is  thereupon,  on  this  day  of  ,  eighteen 

hundred  and  ,  by  his  Honor  ,  Chancellor  of  the 

State  of  New  Jersey,  ordered,  adjudged  and  decreed,  and  the 
said  Chancellor  does,  by  virtue  of  the  power  and  authority  of 
this  court,  hereby  order,  adjudge  and  decree,  that  the  said  bill 
of  interpleader  is  properly  brought  by  the  complainants  in  this 
cause,  and  that  they  are  entitled  to  relief  in  this  court. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  said 
complainants  be  dismissed  from  the  further  prosecution  of  this 
suit,  with  their  costs  to  be  taxed  and  a  counsel  fee  of 
dollars,(a)  and  paid  by  the  clerk  of  this  court  out  of  the  fund, 
and  that  they  be  released,  acquitted  and  discharged  from  all 
claims  or  liability  to  either  of  the  defendants  in  this  suit,  for, 
upon  or  by  reason  of  said  fund. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the  said 
defendants  do  interplead,  settle  and  adjust  their  several  claims, 
demands  and  matters  in  controversy  in  this  suit  as  between 
themselves. 

If  reference  is  to  be  made  to  a  Vice  Chancellor,  add,  And  it 
is  further  ordered,  that  said  cause  be  referred  to  ,  Vice 

for  payment  of  the  complainant's  costs  pleader  suit  may,  after  decree,  file  a 
will  then  be  given  or  made  on  asubse-  supplemental  bill  to  bring  a  new  party 
quent  application  for  that  pvtrpose  by  before  the  court  without  making  other 
motion.  Aldridge  v.  Messner,  6  Ves.  parties  to  the  suit  parties  to  it.  Lijnev. 
418;  Jones  \.  Gilham,  1  Coop.  C.  C.  49.  Pentiell,  1  Sim.  (iV.  S.)  113.  If  a  trial 
But  where  the  right  to  compel  the  at  law  is  directed  between  the  defend- 
defendants  to  interplead  is  disputed,  ants  the  suit  is  thereby  ended  as  to 
costs  will  not  be  given  to  the  com-  the  complainant,  so  that  if  the  com- 
plainant before  the  hearing.  Jones  v.  plainant  dies  the  defendants  may  pro- 
Gilham,  supra.  Where  the  decree  at  ceed  without  reviving  the  cause, 
the  hearing  has  terminated  the  suit  as  Anon.,  1  Veni.  351. 
to  the  complainant,  it  will  not  abate  (a)  Pamph.  L.,  1893,  p.  251.  The 
by  his  death.  Ld.  Bed.  60.  It  was  usual  counsel  fee  is  the  same  in 
held   that   a  defendant   in   an   inter-  amount  as  in  foreclosure  cases. 


INTERPLEADER.  487 

Chancellor,  to  hear  the  same  for  the  Chancellor,  and  to  report 
thereon  to  him  and  advise  him  what  order  or  decree  to  make 
therein. 

Or  a  reference  to  a  master  as  follows :   And  for  that  purpose 
it  is  ordered  that  it  be  referred  to  ,  one  of  the  special 

masters  of  this  court,  to  inquire  and  report  which  of  the  said 
defendants  is  entitled  to  the  fund  in  controversy,  and  which 
has  been  deposited  with  the  clerk  of  this  court.  And  if  the 
said  master  shall  be  of  opinion  that  any  two  or  more  of  the  said 
defendants  are  equitably  entitled  to  share  in  the  same,  that  he 
also  ascertain  and  report  what  portion  of  the  fund  belongs  to 
each.  And  that  upon  such  reference  either  party  is  to  be  at 
liberty  to  proceed  before  said  master  in  such  manner  as  said 
master  may  direct ;  and  that  the  solicitor  of  each  defendant  have 
notice  of  all  proceedings  before  the  said  master  of  which  notice 
is  required  to  be  given  by  the  practice  of  this  court,  and  the 
consideration  of  all  questions  of  costs  as  between  the  said  de- 
fendants and  all  other  questions  and  directions  are  reserved  until 
the  coming  in  of  the  master's  report ;  but  with  liberty  to  either 
party  to  apply  for  such  other  instructions  or  directions  to  the 
master  as  may  be  necessary  or  proper  pending  the  reference. 

Final  decree  in  interpleader  suit  on  argument. (a) 

(litle  of  cause.) 
This  cause  coming  on  to  be  heard  before  the  court,  in  the 
presence  of  ,  solicitor  for  and  of  counsel  with  the  defend- 

(a)  The  court  disposes  of  the  ques-  may  be  best  suited  to  the  nature  of  the 
tions  arising  upon  bills  of  interpleader  case.  Condict's  Ex'rs  v.  King,  2  Beas. 
in  various  modes,  according  to  the  na-  383.  If  the  bill  is  dismissed,  there  can 
ture  of  the  question  and  the  manner  in  be  no  further  proceedings  bv  consent, 
Avhich  it  is  brought  before  the  court.  as  between  the  defendants,  to  adjust 
If,  at  the  hearing,  the  question  be-  their  rights,  for  the  court  has  no  juris- 
tween  the  defendants  is  ripe  for  deci-  diction.  Jennings  v.  Nugent,  1  3Ioll. 
sion,  the  court  decides  it  and  pro-  134.  Abillof  interpleader,  necessarily 
nounces  a  final  decree.  See  Hendrick-  admits  the  indebtodnefs  of  the  com- 
son  V.  Decow,  Sax.  593  ;  Eoiue  v.  Iloag-  plainant,  and  if  one  of  two  parties  de- 
mand's Adm'rs,  3  Ilal.  Ch.  139,  If,  at  fondant  witlidraws  all  claim  to  the 
the  hearing,  tlie  case  is  not  ripe  for  funds,  a  decree  that  they  be  paid  to 
decision,  the  court  directs  an  action  or  the  otlier  is  a  matter  of  course.  Knight 
an  issue  or  a  reference  to  a  master,  as  v.  Yarborough,  7  S.  &  M.  179. 


488  FORMS   OF   PLEADINGS. 

ant,  ,  executor  of  the  last  will  and  testament  of  , 

deceased,  and  of  ,  solicitor  for  and  of  counsel  with  the  de- 

fendant, ;  and  the  several  answers  of  said  defendants  being 

read,  depositions  of  witnesses  taken  and  the  arguments  of  the 
respective  counsel  heard ;  and  it  appearing  that  ,  in  his 

lifetime,  had  deposited  with  the  said  complainants  the  sum  of 

dollars  to  his  account;  that  a  deposit- book,  with  said 
sum  therein  credited  to  the  said  ,  had  been  issued  and 

delivered  to  him ;  that  at  the  time  of  his  decease  there  remained 
a  balance  of  said  sum  of  dollars  to  the  credit  of  the  said 

;  that  said  last- mentioned  sum,  as  appears  by  the  state- 
ment of  the  complainants,  was  held  by  them  for  such  person  or 
persons  as  were  lawfully  entitled  to  receive  the  same ;  that  the 
said  was  the  executor  of  the  last  will  and  testament  of 

said  ,  deceased,  and  as  such  executor  was  lawfully  entitled 

to  receive  the  same,  and  that  the  said  defendant,  ,  was  not 

so  entitled. 

And  it  further  appearing  to  the  court  that  said  last-mentioned 
sum,  being  the  balance  due  on  said  deposit  at  the  time  of  the 
decease  of  the  said  ,  together  with  accumulated  interest 

thereon  since  accrued,  making  in  all  the  sum  of  dollars, 

was,  at  the  time  of  filing  of  the  bill  of  complaint  in  this  cause, 
paid  by  the  complainants  into  this  court,  and  that  the  same,  less 
the  costs  of  said  complainants,  still  remains  deposited  in  this 
court,  and  is  subject  to  the  order  and  direction  thereof:  It  is 
thereupon,  on  this  day  of  ,  eighteen  hundred  and 

,  by  ,  Chancellor  of  the  State  of  New  Jersey, 

ordered,  adjudged  and  decreed,  and  the  said  Chancellor,  by 
virtue  of  the  power  and  authority  of  this  court,  does  hereby 
order,  adjudge  and  decree  that  the  said  sum  of  dollars 

remaining  in  the  hands  of  the  complainants  at  the  time  of  the 
death  of  the  said  was  the  property  of  the  said  ,  and 

that  upon  his  decease  and  the  probate  of  his  last  will  and  testa- 
ment, the  said  defendant,  ,  who  was  therein  appointed 
the  executor  thereof,  and  who  has  duly  qualified  as  such  executor, 
became,  was  and  now  is  entitled  to  said  sum,  together  with  all 
accumulations  of  interest  thereon,  as  assets  of  the  estate  of  the 
said             ,  deceased  ;  and  that  the  balance  (after  deducting  said 


PERPETUATING   TESTIMONY.  489 

costs)  of  said  sum  paid  into  this  court  as  aforesaid,  and  now 
remaining  deposited  therein,  together  with  all  interest  accumu- 
lated thereon,  be  paid  to  the  said  defendant,  ,  executor  as 
aforesaid,  or  to  his  solicitor. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the  said 
defendant,  ,  do  pay  to  the  said  his  costs  in  this 

cause  to  be  taxed,  and  also  the  taxed  costs  of  the  said  complain- 
ants heretofore  ordered  paid  the  said  complainants  out  of  the 
said  fund  deposited  in  this  court. 


PERPETUATING  TESTIMONY. 

Bill  to  perpetuate  testimony. (a) 

In  Chancery  of  New  Jersey. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jereey  : 

Complaining,  shows  unto  your  Honor  your  orator,  , 

of  the  township  of  ,  in  the  county  of  ,  and  State 

of  New  Jersey,  that  ,  now  deceased,  late  of  said  township 

(a)  Wlien  a  person    interested   in  wliich  the  complainant  is  desirous  to 

any  property  is  in  danger  of  losing  give  evidence;   that  the  complainant 

the  evidence   of  his   right   before  it  has  an  interest  in  the  subject,  and  the 

can    be    judicially    investigated,    he  nature  of  that  interest,  and  the  interest 

may  tile  a   bill   against   the   persons  of  the  defendant  to  contest  the  com- 

who  will  be  benefited  by  the  los5,  to  plainant's  title.      3Lt.   PL   41.     The 

examine  the  witnesses  and  perpetuate  matter  touching  which  the  complain- 

their    testimony.     2   Barb.    Ch.   Pr.  ant   is  desirous   to   acquire    evidence 

137.     It  must  also  show  that  the  facts,  should  be  parlicularly  stated  in  the 

to  which   the   testimony  of  the  wit-  bill,   so   that   the   interrogatories   on 

nesses    proposed   to   be   examined   is  both   sides   may   be   directed   to   the 

conceived  to  relate,  cannot  be  imme-  true  merits  of  tiie  controversy.     Barl- 

diately  investigated  in  a  court  of  law  lett  v.  Hawker,  Mad.   Ch.  157.     The 

or  equity,  or  that,  before  the  facts  can  prayer   of   the    bill    should    be    for 

he  adjudicated  upon,  the  evidence  of  leave  to  examine  witnesses  touching 

a  material  witness  is  likely  to  be  lost  matters  stated,  to  the  end  that  their 

by  his   death  or  departure  from   the  testirpony  may  be  preserved  and  per- 

state.    MU.Pl.^2;i;iory'sEq.PL2i5;  petuated.      3nt.   PL   41.     It    should 

Cann  v.  Cann,  1  P.  Wvis.  508;  Lord  also  pray  the  pi-oper  process  of  sub- 

Norlh  v.  Lord  Gray,  1  Dic/c.  14.     The  pa'ua,  but  it  should  not  pr)y  that  the 

hill  must  show  tlie  matter  touching  defendant  may  abide  such  order  and 


490  FORMS   OF   PLEADINGS. 

of  ,  in  and  by  his  last  will  and  testament  by  him  duly 

made  and  executed  according  to  the  provisions  of  the  statutes  of 
this  state  in  such  case  made  and  provided,  to  pass  by  devise  the 
title  to  real  estate  in  New  Jersey,  and  dated  the  day  of 

,  eighteen  hundred  and  ,  which  last  will  and  testa- 

ment was,  after  the  death  of  the  said  ,  which  took  place 

on  the  day  of  ,  eighteen  hundred  and  ,  duly 

proved  in  the  Orphans'  Court  of  the  county  of  ,  in  this 

state,  in  which  county  said  ,  at  the  time  of  his  death, 

resided,  did  give  and  devise  to  his  wife  the  use  of  his,  the 

said  's,  farm  in  township  aforesaid,  being  the  same 

which  he  purchased  from  the  executors  of  ,  deceased,  to- 

gether with  acres  of  the  wood  and  meadow  land  which  he 

purchased  of  said  executors,  and  adjoining  lands  of  the  late 
,  deceased,  together  with  the  use  of  his  house  and  all  the 
buildings  on  the  farm,  and  the  household  goods  and  horses,  car- 
riages and  farming  utensils,  cows  and  hogs  and  poultry  ;  and  it 
was  thereby  declared  to  be  understood  that  said  farm  and  all  the 
wagons  and  carriages  were  to  remain  with  the  farm  for  the  use 
and  occupancy  of  his  said  wife  during  her  natural  life ;  and  in 
and  by  said  last  will  and  testament  said  did  give  and  de- 

vise, at  the  decease  of  his  said  wife,  the  said  farm  and  lands  to 
your  orator  during  your  orator's  natural  life,  and  then  to  descend 
to  his  (your  orator's)  children,  should  he  have  any.  And  it  was 
thereby  declared  to  be  the  will  of  said  testator,  that  in  case  your 
orator  should  die  childless,  the  property  should  be  sold  and  be 
given  to  the  brothers  and  sisters  of  your  orator,  and  their  de- 
scendants. As  in  and  by  said  last  will  and  testament  may  and 
will  more  fully  and  at  large  appear,  and  to  which,  or  to  the  record 
thereof,  your  orator,  for  greater  certainty,  prays  leave  to  refer. 

And  your  orator  further  shows,  that  said  testator  in  nowise 
revoked,  canceled  or  annulled  said  last  will  and  testament,  or 
any  part  thereof,  or  any  of  the  provisions  or  other  things  therein 
contained,  and  did  not  in  anywise  revoke,  annul  or  modify  said 

decree  as  the  court  shall  think  proper  439.     Nor  can  such  a  bill,  by  amend- 
to  make,  for  that  will  turn  it  into  a  ment,  be  converted  into  a  bill  of  dis- 
bill  for  relief,  which  is  inconsistent  covery   in    aid    of   the   same   claim, 
with  the  nature  of  a  bill  to  perpetuate  Elliee  v.  BonpeU,  32  Beav.  299. 
testimony.     Rose  v.   Gannell,   3  Atk. 


PERPETUATING   TESTIMONY.  491 

provisions  hereinbefore  stated  in  favor  of  his  wife  and  your 
orator  respectively. 

And  your  orator  further  shows,  that  the  said  ,  the 

widow  of  said  testator,  has  departed  this  life,  and  that  your 
orator  is  in  possession,(a)  under  and  by  virtue  of  said  devise  to 
him,  of  the  said  farm  and  lands,  whereof  the  use,  for  her  natural 
life,  was  in  and  by  said  last  will  and  testament  given  to  the  said 
,  wife  and  widow  of  the  said  testator. 

And  your  orator  further  shows,  that  on  or  about  the 
day  of  ,  eighteen  hundred  and  ,  your  orator  was 

lawfully  joined  in  marriage  to  his  present  wife,  ,  then  of 

township  aforesaid,  by  the  Rev.  ,  then  and  still 

being  a  duly  ordained  minister  of  the  Gospel  of  the  Methodist 
Episcopal  Church,  and  then  being  a  duly  stationed  pastor  or 
preacher  in  charge  of  the  Methodist  Episcopal  Church  in  the 
village  of  ,  in  said  township  of  ;  that  yoiir  orator 

has  had  born  to  him  by  his  said  wife  ,  a  lawful  child,  a 

girl,  born  alive  after  said  marriage,  on  the  day  of  , 

eighteen  hundred  and  ,  which  child  was  lawfully  begotten 

by  your  orator,  which  child  died  on  or  about  the  day  of 

,  eighteen  hundred  and 

And  your  orator  further  shows,  (and  he  is  so  advised  by  his 
counsel,)  that  by  the  birth  of  said  child  the  condition  on  the  ful- 
fillment whereof  he  was  to  have  the  fee  simple  in  said  farm  and 
lands,  whereof  the  use  is  in  said  will  given  to  said  testator's 
wife,  was  fulfilled ;  and  he  further  shows  (and  he  is  so  advised 
by  his  counsel,)  that  by  the  said  birth  of  the  said  child  he  be- 
came, and  was  and  is  entitled  to  the  fee  simple  in  said  farm  and 
lands ;  and  your  orator  claims  by  reason  of  the  premises  to  be, 
and  he  shows  to  your  Honor  that  he  is,  by  reason  of  the  prem- 
ises, the  true,  lawful  and  right  owner  in  fee  simple  of  said  farm 
and  lands,  whereof  the  use,  as  aforesaid,  is,  in  and  by  said  last 
will  and  testament  of  said  ,  deceased,  given  to  his,  said 

's,  wife.(6) 

(a)  A  bill  to  perpetuate  testimony  {b)  The   interest  of  the  comphiin- 

as  to  lands  of  which  the  complainant  ant,  to  enable  him  to  file  such  a  bill, 

was  out  of  possession  was   dismissed  must   be  a  present  interest.    Smith's 

on    demurrer.     Smith    v.   Ballard,   2  Ch.  485. 
Haijw.  289. 


492  FORMS   OF   PLEADINGS. 

And  your  orator  further  shows,  that  ,  (wife  of  ,) 

of  said  township  of  ,  and  ,  (wife  of  ,)  of  the 

city  of  ,  in  the  county  of  ,  and  State  of  ,  are 

witnesses  to  the  birth  of  your  orator's  said  child ;  and  that  their 
testimony  on  any  trial  wherein  your  orator's  right  in  the  prem- 
ises to  the  fee  simple  of  and  in  said  farm  and  lands  may  be 
brought  in  question,  or  wherein  it  might  be  to  the  interest  of 
your  orator  to  set  up  and  substantiate,  by  proof,  his  title  in  fee 
simple,  in  and  by  virtue  of  the  premises,  to  the  said  farm  and 
land,  would  be  very  material  and  of  very  great  importance  to 
your  orator. 

And  your  orator  further  shows,  that  said  is  a  woman  of 

the  age  of  years,  or  thereabouts,  and  not  in  good  health ; 

and  that  said  is  of  the  age  of  years,  or  thereabouts, 

and  is  also  not  in  good  health. 

And  your  orator  further  shows,  that  he  has  had  the  following 
brothers  and  sisters,  and  no  other  or  others,  viz ,  ;  that 

said  are  all  now  living ;  and  that  said  is  dead,  and 

left  her  surviving  one  child,  her  heir-at-law,  named  ,  who 

is  still  living,  residing  at  ,  and  is  an  infant  under  the  age 

of  years ;  that  said  is  also  deceased ;  that  he  left 

him  surviving  his  widow  ,  who  resides  in  ,  in  the 

county  of  ,  in  this  state,  and  his  children,  ,  his 

heirs- at-law. 

And  your  orator  further  shows,  that  he  is  informed  and 
believes  that  said  claim  that  your  orator  is  not,  notwith- 

standing the  birth  of  his  said  child,  entitled  in  fee  simple  to  the 
said  farm  and  lands  whereof  the  use  is,  in  and  by  said  last  will 
and  testament  of  said  ,  deceased,  given  to  the  said  testa- 

tor's wife  as  aforesaid,  but  only  to  a  life  estate  therein, 

and  they  threaten  that  after  the  death  of  your  orator  they  will, 
if  he  die  not  having  sold  or  conveyed  away  the  said  farm  and 
land,  proceed  by  legal  proceedings  to  take  the  same  away  from 
your  orator's  devisee  or  devisees  thereof,  if  he  shall  devise  the 
same,  or  his  heirs-at-law,  if  he  shall  die  intestate  as  to  the  same  ; 
and  that  if  your  orator  shall  at  his  death  have  disposed  of  the 
said  farm  and  land  by  conveying  away  the  same  in  fee  simple, 
they  will  proceed  to  take  the  said  farm  and  land  from  your 
orator's  grantee  or  grantees  thereof. 


PERPETUATING   TESTIMONY.  493 

And  your  orator  further  shows,  that  he  is  obviously  unable, 
by  reason  of  the  premises,  to  bring  the  question  as  to  his  right 
in  fee  simple  to  the  said  farm  and  land  before  any  court. 

And  he  well  hoped  that  he  and  his  heirs  and  assigns  would 
have  been  permitted  to  enjoy  said  farm  and  land  quietly  and 
without  any  interruption  from  any  person  or  persons  whomso- 
ever. 

In  consideration  whereof,  and  forasmuch  as  your  orator  cannot 
perpetuate  the  testimony  of  eaid  witnesses  without  the  aid  of  a 
court  of  equity : 

To  the  end,  therefore,  that  the  said  may  set  forth,  if 

they  can,  why  your  orator  should  not  have  said  witnesses  exam- 
ined, and  that  your  orator  may  have  liberty  to  examine  his  said 
witnesses  with  respect  to  the  said  birth  of  his  said  child,  to  the 
end  that  their  testimony  may  be  perpetuated  and  preserved : 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
unto  your  orator  the  state's  writ  of  subpoena,  issuing  out  of  and 
under  the  seal  of  this  honorable  court,  to  be  directed  to  said 
and  ,  therein  and  thereby  commanding  them,  on  a 

certain  day  and  under  a  certain  penalty  therein  to  be  inserted, 
personally  to  be  and  appear  before  your  Honor  in  this  honorable 
court,  then  and  there  to  answer  all  and  singular  the  premises. 

And  your  orator  will  ever  pray,  &c. 

(Signature  of  solicitor  and  counsel  with  complainant.) 

Affidavit  to  be  annexed  to  foregoing  bill. (a) 

State  of  New  Jersey,    "1 
county  of  ,    j      * 

,  the   above-named   complainant,  being   duly   sworn 
according  to  law,  on  his  oath  saith — that  ,  now  deceased, 

(a)  An    affidavit    of   the    circum-  In  practice,  there  are  neither  proofs, 

stances   by   whicTi   the   evidence    in-  nor  hearing,  nor  decree;  yet  the  plead- 

tended  to  be  perpetuated  is  in  danger  ings  take  place  just  as  if  everything 

of  being  lost,  must  be  filed  with  the  else  was  to  follow.     But  as  soon  as  the 

bill.     Mil.  PL  41.     The  defence  to  a  case  is  at  issue,  the  plaintitl"  proceeds 

bill   to   perpetuate    testimony   is   the  to   take   the   testimony  whicli   he   is 

same  as  in  other  cases — by  demurrer,  seeking   to   perpetuate.     If    tlic    bill 

plea  or  answer,  according  to  the  na-  does  not  show  a  riglit  upon  its  face  to 

tare  of  the  case.      Welf.  Eq.  PL  146.  perpetuate   testimony,  the   del'endant 


494  FORMS   OF   PLEADINGS. 

mentioned  and  referred  to  in  this  cause,  made  his  last  will  and 
testament,  as  in  said  bill  stated  ;  that  after  the  same  was  so 
made  the  said  departed  this  life  as  in  said  bill  set  forth  ; 

that  in  and  by  the  said  will,  which,  at  the  time  of  the  death  of 
said  ,  was  in  full  force  and  eifect,  and  had  been  so  exe- 

cuted as  to  pass  thereby  by  devise  land  in  the  State  of  New 
Jersey,  the  said  devised  to  his  wife  the  use  of  his, 

the  said  testator's,  farm  in  ,  in  said  county,  being 

the  same  which  he  purchased  from  the  executors  of  , 

together  with  acres  of  wood  and  meadow  land,  which  he 

purchased  of  said  executors,  and  adjoining  lands  of  said  , 

deceased,  together  with  the  use  of  his  house  and  of  the  buildings 
on  the  farm,  and  the  household  goods,  horses,  carriages,  farming 
utensils,  his  cows  and  hogs  and  poultry,  and  thereby  it  was 
declared  to  be  understood  that  said  farm  and  all  the  wagons  and 
carriages  were  to  remain  with  the  farm  for  the  use  and  occu- 
pancy of  his  said  wife  during  her  natural  life ;  and  said  testator 
did  thereby  give  and  devise,  at  the  decease  of  his  said  wife,  the 
said  farm  and  lands  to  this  deponent  during  this  deponent's 
natural  life,  and  then  to  descend  to  his  (this  deponent's)  children, 
should  he  have  any.  And  thereby  it  was  declared  to  be  the  will 
of  said  testator,  that  in  case  this  deponent  should  die  childless 
the  property  should  be  sold  and  be  given  to  the  brothers  andT 
sisters  of  this  deponent,  and  their  descendants;  that  the  said 
has  departed  this  life,  and  this  deponent  is  in  possession 

may  demur  to  it;  but  if  it  does  show  within  a  limited  time  or  pay  the  costs 

a  right  upon  its  face,  tlie  defendant  is  of  the  suit.     Wright  v.  Tatham,  2  Sim. 

helpless.     He  has  to  answer  the  bill,  459.     If  the  defendant  neglects  to  take 

but  his  answer  is  an  idle  form;  the  the  steps  proper  to  be  taken  by  him 

plaintifl'  is  not  required  to  prove  the  within  the  prescribed  time,  the  court 

bill,  nor  has  the  defendant  any  oppor-  will,  it  seems,  order  the  examination 

tunity   of   proving   a    defence.     The  of   witnesses   to   proceed.     Coveny  v. 

plaintiffs  assertions  not  under  oath,  Athill,  6  Sim.  439.     The  defendant,  as 

are  not  only  taken   as   true,  but   as  well  as  the  complainant,  is  entitled  to 

being   the   whole   truth.      LangdeWs  examine   witnesses   under  the   order. 

Summary  Eq.  PL  104;    1  Smith  365.  And  as  to  the  manner  of  taking  evi- 

If  the  complainant  neglects   to  pro-  dence,  see  Dan.  Ch.  Pr.  1574.     When 

ceed  with  the  suit,  the  defendant  can-  the  witnesses  have  been   examined, 

not  move  to  dismiss  for  want  of  prose-  the  cause  is  at  an  end.     Morrison  v. 

cution,  but  may  move  that  the  plain-  Arnold,  19  Fes.  670;  Vaughan  v.  Fitz- 

tiflf  be  ordered  to  take  the  next  step  gerodd,  1  Sch.  &  Lef.  316. 


PERPETUATING   TESTIMONY.  495 

under  and  by  virtue  of  eaid  devise  to  him  of  said  farm  and 
lands,  whereof  the  use  for  her  natural  life  was  in  and  by  said 
last  will  and  testament  given  as  aforesaid  to  the  said 
wife  and  widow  of  the  said  testator ;    that  this  deponent  was 
lawfully  married  to  his  present  wife,  ,  on  or  about  the 

day  of  ,  eighteen  hundred  and  ,  in  said 

township  of  ;  that  he  has  had  born  to  him  by  said  wife 

a  lawful  child,  a  girl,  born  alive  after  said  marriage,  and  on  the 
day  of  ,  eighteen  hundred  and  ,  which  child 

was  lawfully  begotten  by  this  deponent,  which  child  died  on  or 
about  the  day  of  ,  eighteen  hundred  and  ; 

that  he  is  advised  by  his  counsel  that  by  the  birth  of  said  child 
the  condition  on  the  fulfillment  whereof  he  was  to  have  the  fee 
simple  in  said  farm  and  lands  whereof  the  use  is  in  said  will 
given  to  said  testator's  wife,  ,  was  fulfilled,  and  that  by 

the  birth  of  said  child  he  became  and  was  and  is  entitled  to  the 
fee  simple  of  said  farm  and  lands,  and  he  claims  that  by  reason 
of  the  premises  he  is  the  true  and  lawful  and  right  owner  in  fee 
simple  of  said  farm  and  lands  whereof  the  use  as  aforesaid  is  in 
and  by  said  last  will  and  testament  given  to  said  testator's  wife 
;  that  ,  wife  of  ,  of  ,  and  ,  wife 

of,  ,  of  ,  are  witnesses  to  the  birth  of  said  child ; 

that  their  testimony  on  any  trial  wherein  this  deponent's  right 
in  the  premises  to  the  fee  simple  of  and  in  said  farm  and  lands 
might  be  brought  in  question,  or  wherein  it  might  be  to  the  in- 
terest of  this  deponent  to  set  up  and  substantiate  by  proof  his 
title  in  fee  simple  of,  in  and  to  the  premises  to  said  farm  and 
lands,  would  be  very  material  and  of  very  great  importance  to 
this  deponent ;  that  said  is  a  woman  of  the  age  of 

years,  or  thereabouts,  and  is  not  in  good  health  ;  that  said 
is  of  the  age  of  years,  or  thereabouts,  and  is  also  not  in 

good  health ;  that  by  reason  of  the  fact  that  this  deponent  is  in 
possession  of  said  land  and  premises,  he  is  unable  to  bring  before 
any  court  the  question  as  to  his  title  to  the  fee  simple  of  said 
land  and  premises  under  the  said  last  will  and  testament ;  and 
that  this  deponent  has  had  the  following  brothers  and  sisters, 
and  no  other  or  others,  to  wit, 

{Jurat)  {Signature  of  complainant.) 


496 


FORMS   OF   PLEADINGS. 


DI8C0VERY.(a) 

Bill  for  discovery  under  the  statute. (6) 

In  Chancery  of  New  Jersey. 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

Commencement  in  usual  form,  then  "that  on  the  day  of 

,  eighteen  hundred  and  ,  your  orator  recovered  a 

judgment  in  the  Supreme  Court  of  the  State  of  New  Jersey 


(a)  Every  bill  may  be  regarded  as 
a  bill  of  discovery;  but  the  species 
of  bill  usually  distinguished  by  that 
title  is  a  bill  for  the  discovery  of  facts 
resting  in  the  knowledge  of  the  de- 
fendant, or  of  deeds  or  writings  or 
other  things  in  his  custody  or  power, 
and  seeking  no  relief  in  consequence 
of  the  discovery ;  though  it  may  pray 
the  stay  of  proceedings  in  another 
court  till  the  discovei-y  is  made.  2 
Dan.  Ch.  Pr.  1556.  A  bill  of  discov- 
ery must  state  the  matter  touching 
which  discovery  is  sought,  the  interest 
of  the  plaintiff"  and  defendant  in  the 
subject,  and  the  facts  and  circum- 
stances upon  which  the  right  of  the 
plaintiff'  to  require  the  discovery 
from  the  defendant  is  founded.  Ld. 
Bed.  64.  The  bill  should  pray  that 
the  defendant  make  a  full  discovery 
of  the  matters  therein  stated.  But  it 
is  not  necessary  to  allege  that  the 
facts,  a  discovery  of  which  is  sought, 
are  within  the  exclusive  knowledge 
of  the  defendant  Metier  v.  Meder,  4 
C.  E.  Gr.  457.  Nor  that  the  discovery 
is  absolutely  necessary  or  indispensa- 
ble to  the  defence.  It  will  be  suffi- 
cient to  show  that  it  is  material  evi- 
dence. Howell  v.  Ashmore,  1  Stock.  82. 
It  may  also  pray  any  equitable  assist- 
ance of  the  court,  which  is  merely 
consequential  upon  the  prayer  for 
discovery,    but    it    should    not    pray 


general  relief,  for  then  it  is  a  bill  for 
relief;  nor  pray  that  the  defendant 
may  abide  such  order  or  decree  as  the 
court  may  think  proper,  though  if 
the  word  decree  be  omitted  it  is  not  a 
bill  for  relief.  2  Dan.  Ch.  Pr.  1557  ; 
see  Little  v.  Cooper,  2  Stock.  273  If 
the  answer  to  a  bill  for  discovery 
merely,  and  for  injunction  against  pro- 
ceedings at  law  denies  the  matters  of 
which  discovery  is  sought,  and  there 
is  no  other  ground  of  equity  jurisdic- 
tion in  the  case,  the  injunction  will 
be  dissolved  and  the  bill  dismissed. 
Jones  V.  Sherwood,  2  Hal.  Ch.  <210; 
Fowler  v  Roe,  3  Stock.  367. 

(6)  Whenever  an  execution  against 
the  property  of  a  defendant  shall  have 
been  issued  on  a  judgment  at  law,  and 
sha'l  have  been  returned  unsatisfied, 
in  whole  or  in  part,  leaving  an  amount 
or  balance  remaining  due  exceeding 
one  hundred  dollars,  exclusive  of 
costs,  the  party  suing  out  such  execu- 
tion may  file  a  bill  in  chancery  to 
compel  the  discovery  of  any  property 
or  thing  in  action  belonging  to  the 
defendant  in  such  judgment,  and  of 
any  property,  money,  or  thing  in 
action,  due  to  him  or  held  in  trust  for 
him,  except  such  property  as  is  now 
reserved  by  law,  and  to  prevent  the 
transfer  of  any  such  property,  money 
or  thing  in  action,  or  the  payment  or 
delivery  thereof  to  the  defendant,  ex- 


DISCOVERY. 


497 


against  the  defendant,  ,  for  the  sum  of  dollars  damages, 

and  dollars  costs  of  suit,  as  by  the  record  of  the  said  judg- 

ment, or  an  exemplified  copy  thereof,  when  produced,  will  more 


cept  when  such  trust  has  been  created 
by,  or  the  fund  so  held  in  trust  has 
proceeded  from,  some  person  other 
than  the  debtor  himself.  Rev.,  "Chan- 
cery" §  88.  The  court  shall  have 
power  to  compel  such  discovery,  and 
to  prevent  such  transfer,  payment  or 
delivery,  and  to  decree  satisfaction  of 
the  sum  remaining  due  on  such  judg- 
ment, out  of  any  personal  property, 
money  or  things  in  action  belonging 
to  the  defendant,  or  held  in  trust  for 
him,  with  the  exception  above  stated, 
which  shall  be  discovered  by  the  pro- 
ceedings in  chancery  ;  provided,  that 
if  the  personal  property,  money  or 
thing  in  action,  which  shall  be  dis- 
covered as  aforesaid,  does  not  amount 
to  the  sum  of  one  hundred  dollars,  no 
costs  shall  be  recovered  by  the  plain- 
tiff against  the  defendant  in  such  pro- 
ceeding. Id.,  ^  89.  It  was  provided 
by  statute  in  New  York  (2  i?.  S.,  173, 
§  37,  Ed.  1829,)  that  the  Court  of 
Chancery  should  dismiss  every  suit 
concerning  property  where  the  matter 
in  dispute,  exclusive  of  costs,  did  not 
exceed  the  value  of  one  hundred  dol- 
lars, and  it  was  held  that  the  words 
"  exclusive  of  costs ''  refer  to  the  costs 
in  the  Court  of  Chancery  merely ;  and 
that  a  judgment  creditor  who  had  re- 
covered a  judgment  in  a  court  of  law, 
and  upon  which  judgment  there  was 
due  for  debt  and  costs  more  than  one 
hundred  dollars,  might  file  his  bill, 
although  the  amount  due  upon  such 
judgment,  exclusive  of  the  costs  in- 
cluded therein,  was  less  than  one  hun- 
dred dollars  at  the  time  of  filing  such 
bill.  Spear  v.  Given,  9  Paige  362. 
A  suit  brought  by  a  creditor  under 


the  statute  must  be  brought  for  him- 
self alone,  and  not  for  himself  and 
such  other  creditors  as  may  join 
therein.  The  relief  given  is  for  the 
creditor  who  pursues  the  statute;  no 
others  are  entitled  to  share  with  him 
the  benefits  of  the  proceedings  till  he 
is  satisfied.  Whitney  v.  Robhin?,  2  C 
E.  Gr.  360.  The  only  relief  provided 
for  by  the  statute  is  the  discovery  of 
property,  preventing  its  payment  to 
the  defendant  or  transfer  to  a  stranger, 
having  a  I'eceiver  to  collect  and  sell  it, 
to  whom  the  court  can  compel  the  de- 
fendant to  convey  it,  and  the  applica- 
tion of  it  to  pay  the  debt  of  the  com- 
plainant. But  the  fact  that  other 
specific  relief  is  prayed  than  can 
properly  be  granted  under  the  statute,, 
does  not  render  the  bill  multifarious. 
Id.  364.  A  receiver  appointed  under 
the  act  providing  for  discovery  on  the 
return  of  an  unsatisfied  execution  may 
file  a  bill  in  his  own  name  to  have  the 
property  discovered  freed  from  claims 
and  liens  put  upon  it  in  fraud  of  credi- 
tors. Miller  v.  3IacKenzie,  2  Stew.  Eq. 
291,  on  appeal.  When  a  bill  shall  be 
filed  under  the  statute  for  discovery, 
duly  verified  by  the  oath  of  the  com- 
plainant therein.  Or  his  solicitor  or 
agent,  that  he  believes  the  contents 
thereof  are  true,  it  shall  be  lawful  for 
the  Chancellor,  in  term  time  or  vaca- 
tion, forthwith  to  make  an  order  re- 
quiring the  judgment  debtor  to  appear, 
and  make  discovery  on  oath  concern- 
ing his  property  and  things  in  action 
before  a  master  of  said  court,  to  be- 
designated  in  said  order,  at  a  time  and 
place  in  said  order  to  be  specified. 
Rer,  "Chancery,"  ^  90.     An   answer 


2g 


498 


FORMS   OF   PLEADINGS. 


fully  appear ;  that  on  the  day  of  ,  eighteen  hundred 

and  ,  your  orator  caused  to  be  issued  and  delivered  to  the 

sheriff  of  the  county  of  ,  where  the  said  defendant  then 


of  a  defendant  to  such  bill  by  an  exe- 
cution creditoi",  that  he  has  no  prop- 
erty of  any  kind,  will  not  prevent  the 
appointment  of  a  receiver,  and  the 
transfer  by  the  defendant  to  such 
receiver  of  his  property  and  effects. 
Fuller  V.  Taylor,  2  Hal.  Ch.  301;  see 
Bloodgood  v.  Clarlc,  4  Paige  575 ;  New 
V.  Bame,  10  Paige  502.  If  it  shall 
appear  by  the  bill,  or  by  one  supple- 
mental thereto,  and  by  proof  by  the 
oath  of  the  complainant  or  that  of  any 
other  person,  that  any  person  owes  the 
said  judgment  debtor,  otherwise  than 
for  his  labor  or  personal  services,  or 
for  the  labor  or  services  of  any  mem- 
ber of  his  family,  or  holds  money  or 
property  in  possession  or  action,  in 
trust  for  him  or  for  his  use,  except 
such  property  as  is  now  reserved  by 
law,  or  when  such  trust  has  been 
created  by,  or  the  fund  so  held  in 
trust  has  proceeded  from  some  person 
other  than  the  debtor  himself,  it  shall 
be  lawful  for  the  Chancellor  to  make 
an  order  forbidding  the  payment  of 
such  debt,  or  the  transfer  of  said 
property  or  money  by  or  to  the  said 
debtor  or  any  third  person  until  further 
order  to  be  by  him  made.  Rev., 
"  Chancery,^'  |  91.  Witnesses  may  be 
required  to  appear  and  testify  "concern- 
ing said  matters,  by  either  party,  by 
subpoena  ad  testificandum,  issued  out  of 
said  Court  of  Chancery,  and  the  said 
master  may  adjourn  the  said  examina- 
tion from  time  to  time,  at  the  instance 
of  either  party.  Id.,  §  92.  The  ex- 
amination of  the  debtor  and  witnesses 
shall  be  certified  by  said  master  to  the 
Court  of  Chancery,  and  thereupon  it 
shall  be  lawful  for  the  Chancellor  to 
appoint  a  receiver,  pendente  lite,  of  the 
property  and  things  in  action  belong- 


ing or  due  to  or  held  in  trust  for  said 
debtor  as  aforesaid,  who  thereby  shall 
receive  authority  to  possess,  receive, 
and  in  his  own  name  as  such  receiver, 
sue  for  such  property  or  things  in 
action,  and  the  Chancellor  may  order 
the  judgment  debtor  to  convey  and 
deliver  to  such  receiver  all  such  prop- 
erty and  rights  in  action  and  the  evi- 
dence thereof;  and  said  receiver  shall 
in  all  respects  be  subject  to  the  author- 
ity of  the  Chancellor,  in  accordance 
with  the  practice  of  the  court,  and 
shall  and  may  dispose  of  the  said 
property  and  things  in  action  in  con- 
formity with  the  final  decree  in  the 
cause.  Id.,  ^  93.  It  was  held  in  New 
York  that  upon  a  creditor's  bill  for  the 
purpose  of  reaching  the  property  of 
the  defendant  after  the  return  of  an 
execution  unsatisfied,  it  is  a  matter  of 
course  to  appoint  a  receiver  of  the 
defendant's  property,  if  the  equity  of 
the  bill  is  not  denied  upon  the  hear- 
ing of  the  application.  Bloodgood  v. 
Clark,  4  Paige  574.  Either  party  on 
the  final  hearing  of  the  cau? e  may  use 
his  own  deposition,  and  that  of  the 
opposite  party,  or  either  of  them,  and 
the  deposition  or  depositions  of  any 
other  witness  or  witnesses  taken  under 
this  act;  provided,  said  party  so  in- 
tending to  use  the  same  shall  file  with 
the  clerk  of  the  court,  within  twenty 
days  after  the  filing  of  said  deposition 
in  the  clerk's  oflice,  a  written  notice 
of  said  intention ;  and  provided  further, 
that  the  said  deposition  so  designated 
would  have  been  legal  evidence  in  said 
suit,  if  the  same  had  been  taken  after 
issue  joined,  according  to  the  practice 
of  the  court.  Bev.,  "  Chancery,"  |  94 ; 
Howell  V.  Ashmore,  1  Stock.  82. 


DISCOVERY.  499 

bad  a  place  of  business,  and  then  resided  and  still  resides,  an 
execution  in  the  usual  form,  directed  to  said  sheriff,  thereby  com- 
manding him  to  satisfy  the  said  judgment  out  of  the  goods  and 
chattels  of  the  said  ,  in  his  county,  and  if  sufficient  goods 

and  chattels  of  the  said  could  not  be  found,  then  out  of 

the  lands  and  tenements  of  the  said  ,  whereof  he  was 

seized  on  the  day  of  ,  eighteen  hundred  and  , 

the  day  of  the  entering  of  the  said  judgment;  and  that  said 
execution  was,  before  the  delivery  thereof,  recorded  and  was  duly 
endorsed  with  a  direction  to  said  sheriff  to  levy  for  dollars 

damages  and  costs,  with  interest  thereon  from,  &c.,  besides 
sheriff's  fees ;  that  said  sheriff  has  duly  made  return  of  said 
execution,  that  said  defendant  had  no  goods  or  chattels,  lands, 
tenements  or  real  estate  within  his  county  whereon  to  levy  the 
said  execution,  or  any  part  thereof.  And  your  orator  shows  that 
said  judgment  so  recovered  as  aforesaid  still  remains  in  full  force 
and  effect,  not  satisfied  or  in  any  manner  vacated,  and  that  there 
is  now  due  and  unpaid  upon  the  said  judgment  the  sum  of 
dollars,  and  interest  thereon  from,  &c.,  besides  the  sum  of 
dollars  of  costs ;  that  at  the  time  of  the  recovery  of  the  judgment 
above  mentioned  against  the  said  ,  he,  the  said  , 

was,  and  for  several  years  previous  thereto  had  been,  engaged  in 
mercantile  business  at  ,  and  that  the  complainant  is  in- 

formed and  believes  that  in  the  course  of  his  said  business  divers 
persons  became  indebted  to  the  said  ,  and  that  the  said 

has,  at  the  time  of  the  filing  of  this  bill  of  complaint, 
debts  due  to  him  from  solvent  and  responsible  persons,  and  for 
which  he  holds  divers  securities  and  evidences  to  a  large  amount, 
and  has  divers  goods,  wares  and  merchandise  or  other  articles  of 
personal  property  which  belong  to  him,  or  in  which  he  is  in 
some  way  or  manner  beneficially  interested;  and  that  he  has 
equitable  interests  and  things  in  action  of  some  nature  or  kind 
which  might  and  ought  to  be  applied  to  the  payment  of  the  said 
judgment  of  your  orator  against  him;  that  the  said  defendant 
has  property,  debts  and  equitable  interests,  things  in  action  or 
effects  of  the  value  of  more  than  one  hundred  dollars,  exclusive 
of  all  prior  just  claims  thereon,  which  your  orator  has  been 
unable  to  reach  by  execution  on  his  said  judgment ;  and  that 


500  FORMS   OP   PLEADINGS, 

this  suit  is  not  brought  by  collusion  with  the  said  defendant,  or 
with  any  other  person,  or  for  the  purpose  of  protecting  the 
property  or  effects  of  the  said  defendant  against  the  claims  of 
his  other  creditors. 

In  consideration  of  the  premises  and  to  the  end  that  the  said 
defendant  may  full,  true  and  perfect  answer  make  to  all  and 
singular  the  matters  aforesaid,  and  may  be  decreed  to  make  a  full 
and  true  discovery  and  disclosure  of  and  concerning  them  and 
to  pay  the  amount  of  said  judgment,  with  interest  thereon,  and 
the  costs  of  this  suit,  and  to  apply  for  that  purpose  any  money 
or  property,  or  debts,  choses  in  action  and  equitable  interests  be- 
longing to  or  held  in  trust  for  him ;  and  that  he  be  restrained 
from  transferring  any  property,  money  or  thing  in  action  be- 
longing to  him,  or  any  property,  money  or  thing  in  action  due 
to  him  or  held  in  trust  for  him,  except  when  such  trust  has  been 
created  by,  or  the  fund  so  held  in  trust  has  proceeded  from, 
some  person  other  than  the  said  defendant,  and  except  such 
property  as  is  now  reserved  by  law ;  and  also  forbidding  the  pay- 
ment or  delivery  to  the  said  ,  by  any  person  or  persons, 
of  any  such  property,  money  or  thing  in  action  except  as  afore- 
said ;  and  that  he  pay  to  your  orator  the  amounts  due  on  the 
said  judgment  out  of  such  property,  money  or  things  in  action, 
with  the  exceptions  hereinabove  stated,  that  may  be  discovered 
by  these  proceedings,  and  that  an  order  may  be  made  by  your 
Honor  requiring  the  said  defendant  to  appear  and  make  dis- 
covery concerning  his  property  and  things  in  action  as  aforesaid 
before  a  master  of  this  court,  and  that  a  receiver  be  appointed 
with  the  usual  powers  and  duties  of  receivers  in  like  cases  of  all 
said  property  and  things  in  action  of  said  defendant,  and  that 
your  Honor  make  such  further  or  other  order  in  the  premises 
as  the  nature  of  the  case  may  require. 

New   Jersey,  ss. —  ,  the   above-named   complainant, 

being  duly  sworn  according  to  law,  on  his  oath  saith — that  he 
has  read  the  foregoing  bill,  and  that  he  believes  the  contents 
thereof  are  true. 

(Jurat.)  (Signature.) 


SUPPLEMENTAL    BILL.  501 

Order  for  discovery,  &c.,  under  section  90,  Rev., 

"  Chancery." 

{Title  of  cause.) 

It  appearing  to  the  court  that  the  said  complainant  has  filed 
his  bill  of  complaint  herein,  setting  forth  that  he  is  the  owner 
of  a  judgment  recovered  against  the  defendant,  ,  in  the 

Supreme  Court  of  this  state,  and  that  an  execution  against  the 
property  of  the  said  defendant  has  been  issued  thereon  and 
returned  wholly  unsatisfied,  leaving  an  amount  remaining  due 
exceeding  dollars,  exclusive  of  costs,  and  praying  the  aid 

of  this  court  in  the  premises ;  and  upon  reading  the  said  bill, 
verified  according  to  law :  It  is,  on  this,  &c.,  ordered,  that  the 
said  defendant  appear  and  make  discovery  on  oath  concerning 
his  property  and  things  in  action,  before  ,  one  of  the 

masters  of  this  court,  on  the,  &c.,  at  the  hour  of  o'clock 

in  the  noon  ;  and  the  said  is  hereby  restrained  from 

transferring  any  property,  money  or  thing  in  action  belonging 
to  him,  or  due  to  him  or  held  in  trust  for  him,  except  where 
such  trust  has  proceeded  from  some  person  other  than  the  said 
defendant,  and  except  such  property  as  is  now  reserved  by  law ; 
and  the  said  defendant,  ,  is  hereby  restrained  from  paying 

or  delivering  to  the  said  {the  judgment  debtor)  any  such  prop- 
erty, money  or  thing  in  action,  except  as  aforesaid,  until  the 
further  order  of  this  court  in  the  premises. 


SUPPLEMENTAL  BILL. 

Order  for  leave  to  file  supplemental  bill. (a) 

( Title  of  cause.) 
This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  that  {state  shortly  the 

(a)  It  is  irregular  to  file  a  supjile-  court,  in  a  case  of  doubt,  sliall  direct 

mental  bill  without  leave  first  obtained  it  to  be  given.     Where  no  objection 

of  the  court.     An  application  for  such  has  been   taken  to  the  regularity  of 

leave  should   always   be  made.     No  the  proceedings  on  this  ground,  it  will 

notice  thereof  is  necessary,  unless  the  be  considered  as  waived  by  a  voluntary 


602 


FORMS   OF   PLEADINGS. 


object  of  the  supplemental  bill,)  and  that  it  is  necessary  to  bring 
before  this  court  as  a  party  defendant  in  this  suit :    It  is 

thereupon,  on  this  day  of  ,  eighteen  hundred  and 

,  ordered,  that  the  said  complainant  have  leave  to  file  his 

supplemental  bill  in  this  suit. 

Supplemental  bill  to  introduce  new  niatter.(a) 

(Address.) 

Complaining,  shows  unto  your  Honor  your  orator,  ,  of 

&c.,  that  on  or  about  the  day  of  ,  eighteen  hundred 

and  ,  your  orator  exhibited  his  original  bill  of  complaint 

in  this  honorable  court  against  ,  the  defendant  hereinafter 

named  as  defendant,  thereby  stating  [here  state  the  substance  of 
the  allegations  of  the  original  bill,  and  the  prayer  thereof.) 

And  your  orator  further  shows,  that  the  said  ,  being 

duly  served  with  process  of  subpoena,  appeared  to  your  orator's 


appearance  and  demurrer  by  the  de- 
fendants. Allen  V.  Taylor,  2  Gr.  Ch. 
435;  Eager  v.  Price,  2  Paige  333; 
Buckingham  v.  Corning,  2  Stew.  Eq. 
238. 

Under  the  circumstances  stated  in 
rule  210  it  is  now  unnecessary  in 
practice  to  file  a  bill  of  revivor  or 
supplemental  bill,  but  the  application 
should  be  made  in  the  form  of  a  peti- 
tion ;  the  course  of  practice  is  indi- 
cated by  the  rule. 

(a)  A  strictly  supplemental  bill  is 
always  founded  on  facts  that  have 
occurred  since  the  filing  of  the  origi- 
nal bill.  These  may  be  necessary 
either  to  aid  the  complainant  in 
obtaining  the  relief  sought,  or  in 
obtaining  new  or  additional  relief. 
Allen  V.  Taylor,  2  Gr.  Ch.  435.  A 
supplemental  bill  should  be  used  in 
preference  to  an  original  bill,  when- 
ever it  can  equally  subserve  the  pur- 
poses of  justice.  Ihid.  Matters  which 
are  known  to  complainant  before  the 
decree  in  the  original  suit,  will  not 
support  a  supplemental  bill ;  nor  will 
matters  which    have   arisen   since,  if 


they  are  merely  cumulative  evidence 
of  the  charges  in  the  original  bill. 
Barriclo  v.  Trenton  Ins.  Co.,  2  Bens. 
164.  After  the  taking  of  testimony, 
if  there  be  an  imperfection  in  the 
frame  of  the  bill,  if  the  case  as  stated 
is  sufficient  to  warrant  the  relief 
prayed  for  or  to  ground  a  complete 
decree,  if  some  other  point  seems 
necessary  to  be  made,  or  some  addi- 
tional discovery  requisite,  the  com- 
plainant must  resort  to  a  supplemental 
bill.  Seymour  v.  Long  Dock  Co.,  2  C. 
E.  Gr.  1G9.  It  is  not  the  practice  to 
reiterate  substantively  in  a  supple- 
mental bill  all  the  charges  of  the 
original  bill,  but  to  set  them  out  by 
way  of  reference,  and  charge  the  new 
and  additional  facts  byway  of  supple- 
ment. Edgar  v.  Clevenger,  2  Gr.  Ch. 
464.  Where  leave  is  given  to  file  a 
supplemental  bill,  the  court  will  per- 
mit other  matters  to  be  introduced 
therein,  which  might  have  been  incor- 
porated in  the  original  bill,  by  way  of 
amendment.  Stafford  v.  Hoivletf,  1 
Paige  200. 


SUPPLEMENTAL   BILL.  503 

said  bill,  and  put  in  his  answer  thereto,  whereby  he  alleged,  &c., 
[state  here  shortly  the  substance  of  the  defendant's  answer.) 

And  your  orator  further  shows,  that  the  said  answer  has  been 
replied  unto  by  your  orator,  and  witnesses  have  been  examined 
on  both  sides,  but  the  proofs  have  not  yet  been  closed,  as  by 
the  said  bill  and  proceedings  now  remaining  as  of  record  in  this 
honorable  court,  reference  being  thereunto  had  will  more  fully 
appear.  * 

And  your  orator  further  shows,  by  way  of  supplement,  that 
your  orator  has  lately  and  since  the  examination  of  witnesses  in 
the  said  cause,  discovered,  as  the  fact  is,  that,  &c.,  {state  the  sup- 
plemental matter.) 

And  your  orator  charges  that,  &c.,  {insert  here  the  special  alle- 
gations necessary  to  the  complainant's  case.)  To  the  end,  there- 
fore, that  the  said  defendants  may,  if  they  can,  show  why  your 
orator  should  not  have  the  relief  hereby  prayed,  and  may,  upon 
their  oaths,  answer  the  premises  as  fully  as  if  the  same  were 
here  again  repeated,  and  they  particularly  interrogated  thereto ; 
and  more  especially  that,  &c.,  {the  special  interrogatories  may  be 
inserted  here.) 

And  that  your  orator  may  have  the  same  relief  against  the 
said  as  he  might  have  had  if  the  facts  hereinbefore  stated 

and  charged  by  way  of  supplement  had  been  stated  in  your 
orator's  said  original  bill ;  and  that  {here  insert  special  prayer 
for  relief;)  and  that  your  orator  may  have  such  other  or  further 
relief  in  the  premises  as  the  circumstances  of  his  case  may 
require  and  to  your  Honor  shall  seem  meet. 

May  it  please  your  Honor,  &c.,  {insert  prayer  for  process  of 
8ubposna.){a) 

Supplemental  bill  against  new  parties  who  should 
have  been  defendants  in  the  original  bill. 

{Address.) 
Proceed  as  in  preceding  form  to  *,  then,  And   your  orator 
further  shows,  by  way  of  supplement,  that  your  orator  has  lately 

(rt)  The  subpoena   is   in  tlie  same  filed.     Process    on  the   original    bill 

form  as  a  subpoena  to  answer  an  origi-  should   be   served  bolbre   a    supple- 

nal  bill,  except  that  it  specifies  the  mental  bill  is  filed.  Outn-ater  y.  Berry, 

nature   of  the   bill   which    has  been  2  JIal.  Ch.  (J3. 


504  FORMS   OF   PLEADINGS. 

discovered,  as  the  fact  is  {insert  supplemental  matter.)  And  your 
orator  charges  that  the  said  [the  new  defendants)  are,  by  the 
means  aforesaid,  interested  in  {the  subject  of  the  suit,)  and  are 
necessary  parties  to  this  suit;  and  that  your  orator  is  entitled  to 
have  the  same  relief  from  his  said  original  bill,  as  if  they  had 
been  made  parties  thereto. 

To  the  end,  therefore,  that  the  said  defendants  may,  if  they 
can,  show  why  your  orator  should  not  have  the  same  relief  hereby 
and  by  his  said  original  bill(a)  prayed,  and  may,  upon  their 
several  oaths,  &c. ;  and  that  your  orator  may  have  the  same 
relief  from  his  said  original  bill,  as  if  the  said  defendants  had 
been  made  parties  thereto,  &c.,  {prayer  for  special  and  general 
relief  and  for  subpoena.) 

Bill  in  the  nature  of  a  bill  of  revivor  and  supple- 
ment. 

{Address.) 

Complaining,  show  unto  your  Honor  your  orators,  , 

that  on  the  day  of  ,  eighteen  hundred  and  , 

your  orators,  other  than  the  above-named  executors  of  , 

deceased,  and  the  said  ,  then  living,  exhibited  their  original 

bill  in  this  honorable  court  against  the  above-named  defend- 
ants other  than  the  said  ,  who  has  since  been  appointed 
trustee ;  which  said  bill,  after  setting  forth  that  ,  then  of 
,  had  died  in  eighteen  hundred  and  ,  leaving  a 
will,  in  and  by  which  he  created  certain  trusts  for  the  complain- 
ants,              ,  and  appointed  certain  trustees  of  said  trust,  of 

(a)  A  supplemental  bill  generally  the  supplemental  bill  have  arrived  at 

calls   upon   the  defendant  to  answer  tlie  same  point  at  which  the  original 

the    supplemental   matter    only.     If,  bill   stood,   they   then   proceed,  pari 

however,  it  is  occasioned  by  the  trans-  passu,  together.     Lube's  Eg.  PL  138. 

mission  of  the  interest  of  a  defendant  A  separate   replication   in  a  supple- 

who   has  not   answered   the   original  mental   suit   is   only  necessary  when 

bill,  and  it  is  necessary  to  have  a  dis-  there   has   been  a  replication  in   the 

covery  from  the  new  defendant  of  the  original  suit.     When  there  has  been 

matters  in  the  original   bill,  it  may  no  replication  in  the  original  suit,  a 

pray  that  the  defendant  may  answer  general  replication  will  apply  to  the 

the  original  bill.     Vigers  v.  Ld.  A^ld-  whole  record,  and  not  merely  to  the 

ley,  9  Sim.  72.     After  the  answer  has  original  bill.     Cotton  v.  Earl  Carlisle, 

been  put  in,  and  the  proceedings  on  5  3Iad.  427. 


SUPPLEMENTAL   BILL.  505 

whom  ,  then  deceased,  had  been  the  surviving  trustee,  and 

that  the  said  surviving  trustee  had  filed  no  account  of  his  trust, 
prayed  that  said  ,  administrator  of  the  said  ,  might 

be  compelled  to  render  an  account  of  said  trust  estates,  and  make 
good  out  of  the  estate  of  the  said  any  part  thereof  which 

might  be  found  to  have  been  lost,  wasted  or  misapplied ;  that  a 
new  trustee  might  be  appointed  in  the  place  of  the  said  , 

and  that  said  administrator  might  be  compelled  to  pay,  transfer, 
assign  and  deliver  to  him  all  moneys,  securities  and  assets  of  the 
estate;  that  to  this  bill  the  defendants  appeared  and  filed 
answers  substantially  admitting  the  averments  therein  made ; 
whereupon  this  court  appointed  one  receiver  of  the  said 

trust  estate,  and  referred  the  case  to  ,  as  master,  to  ascer- 

tain and  take  an  account  of  the  funds  and  securities  of  the  trust 
fund  or  estate  in  question  in  said  cause,  and  how  invested  and 
held  by  the  deceased  trustee,  ,  and  for  whose  use,  and 

whether  for  the  separate  use  of  any  and  which  of  the  parties, 
and  what  were  the  respective  rights  of  the  parties,  and  how 
much  was  due  and  owing  from  the  estate  of  said  to  said 

trust;  and  the  said  master  subsequently  made  report  to  said 
court  dividing  the  funds  remaining  of  the  said  trust  estate,  and 
certain  funds  received  during  the  progress  of  the  cause  from  the 
private  estate  of  said  deceased  trustee,  to  make  good  his  ascer- 
tained devastavit  into  five  parts  or  classes,  and  as  and  for  one  of 
said  parts  or  classes  said  master  did  order  that  said  defendant, 
,  who  had  theretofore  been  appointed  trustee  in  the  place 
of  said  ,  deceased,  should  set  aside  and  retain,  as  trustee 

under  the  will  of  said  ,  of  the  fund  or  estate  set  apart  by 

said  will  to  secure  the  annuity  of  dollars,  payable  to  his 

widow,  the  said  ,  during  her  life,  certain  specified  cash 

and  securities ;  which  report  of  said  master,  after  the  hearing  of 
exceptions  thereto  by  said  parties  and  certain  modifications  of 
the  pame,  was  confirmed,  and  a  decree  based  upon  said  report 
made  by  this  honorable  court,  by  and  under  which  said  decree 
certain  specified  cash  and  securities  were  allotted  as  the  fund  to 
secure  said  annuity,  all  of  which,  in  and  by  the  bill,  answers, 
proceedings,  orders  and  decree,  now  on  the  record  of  this  honor- 
able court,  will  appear. 


606  FORMS   OF   PLEADINGS. 

And  your  orators  further  show,  by  way  of  supplement  to 
said  original  bill,  that  after  the  said  report  of  said  master  so 
setting  apart  certain  specified  cash  and  securities  to  secure  said 
annuity  fund,  said  died,  having  in  and  by  her  last  will 

and  testament  appointed  the  said  her  executors;  that  by 

and  under  the  provisions  of  the  will  of  the  said  ,  the 

share  or  portion  of  his  said  estate  set  apart  to  secure  said  annuity 
was,  at  the  death  of  his  said  widow,  to  be  equally  divided  between 
his  children,  the  said  ,  the  shares  of  the  said  , 

being  of  age,  to  be  paid  to  them  directly,  and  the  shares  of  said 
and  to  be  held  upon  the  trusts  declared  of  and 

concerning  their  shares  of  the  residuary  estate  of  the  said  , 

of  which  the  said  is  now  trustee  as  aforesaid ;  that  neither 

by  the  said  report  of  said  master  nor  by  the  said  decree  there- 
upon, is  any  division  made  of  said  annuity  fund  to  take  eifect 
after  the  death  of  said  widow,  but  the  said  fund  is  and  remains 
undivided ;  that  of  said  fund,  as  your  orators  believe  and  aver, 
a  portion  belongs  to  the  estate  of  the  said  as  and  for 

arrears  of  her  said  annuity,  and  the  residue  is  to  be  divided 
among  the  children  as  aforesaid. 

To  the  end,  therefore,  that  said  defendants  may  answer  the 
premises,  and  that  an  account  may  be  taken  of  said  annuity 
fiind,  and  that  the  same  may  be  divided  and  allotted  to  and 
among  the  parties  to  whom  it  belongs  according  to  their  several 
and  respective  interests,  the  debt  due  by  the  said  and 

forming  part  of  said  annuity  fund  being  allotted  to  them 
as  a  portion  of  their  share,  and  that  your  orators  may  have  such 
further  or  other  relief  as  may  be  or  become  necessary : 

May  it  please  your  Honor  to  grant  unto  your  orators  a  writ 
or  writs  of  subpoena,  directed  to  the  said  ,  trustee  appointed 

under  the  will  of  ,  deceased,  and  ,  command- 

ing them  and  each  of  them,  on  a  certain  day  and  under  a  certain 
penalty  therein  to  be  expressed,  to  be  and  appear  before  your 
Honor  to  answer  the  premises  and  to  stand  to  and  abide  such 
order  and  decree  therein  as  to  your  Honor  shall  seem  meet. 

And  your  orators  will  ever  pray,  &c. 

{Signature  of  solicitor  and  counsel  with  complainants.) 


BILL   OF   KEVIEW.  507 

Petition  for  leave  to  file  a  bill  of  review.(a) 
{Title  and  address.) 

The  petition  of  ,  the  above-Darned  defendant,  respect- 

fully shows,  that  on  or  about  the  day  of  ,  eighteen 

hundred  and  ,  filed  his  bill  of  complaint  in  this 

honorable  court  against  your  petitioner  for  the  purpose  of  {state 
the  object  of  the  original  bill  generally,)  and  praying  {recite  the 
prayer.) 

And  your  petitioner  further  shows,  that  being  served  with 
process  of  subpcena,  he  appeared  to  the  said  bill  and  put  in  his 
answer  thereto,  to  which  replication  was  filed.  And  the  said 
cause  being  at  issue,  witnesses  were  thereupon  examined  on  both 
sides  and  the  proofs  closed.  And  that  the  said  cause  was  brought 
to  a  hearing  in  this  court,  whereupon  a  decree  was  made  to  the 
effect  following,  viz.:  {set  forth  the  substance  of  the  decree.)  * 

And  your  petitioner  further  shows,  that  said  decree  has  been 
duly  enrolled;  and  he  is  advised  that  the  said  decree  is  erroneous, 
and  ought  to  be  reviewed  and  reversed  and  set  aside  {if  for  errors 
of  lata,  add  here,)  for  many  apparent  errors  and  imperfections, 
among  which  are  the  following :  for  that  {set  forth  the  errors 

(a)  A  bill  of  review  is  in  the  nature  and  see  as  to  the  form  of  such  petition,, 
of  a  writ  of  error,  and  its  object  is  to  Dexter  v.  Arnold,  5  Mason  303.  By 
procure  an  examination  and  alteration  the  English  practice,  a  bill  of  review 
or  reversal  of  a  final  decree  made  upon  brought  upon  new  matter  may,  it 
a  former  bill,  which  decree  has  been  seems,  be  permitted  even  after  the 
signed  and  enrolled.  Stonfs  Eq.  PL,  decree  has  been  affirmed  by  the  House 
^  403.  There  are  but  two  cases  in  of  Lords.  Barbon  v.  Searle,  1  Vern. 
which  a  bill  of  review  is  jJermitted  to  416  ;  Story'.s  Eq.  PL,  |  418.  But  not 
be  brought,  and  they  are  for  errors  of  where  it  is  brought  upon  error  in  the 
law  and  upon  discovery  of  new  matter.  decree.  Story's  Eq.  PL,  ^l  408,  410. 
Id.  401.  According  to  the  English  The  finding  of  facts  by  the  court  on 
practice,  leave  must  first  be  obtained  a  petition  for  leave  to  file  a  bill  of 
before  a  bill  of  review  can  be  filed  review,  is  not  conclusive  at  the  hear- 
upon  a  discovery  of  new  matter.  2  ing  ou  the  bill.  EUiolt  v.  Balcom,  11 
Dan.  Ch.  Pr.  \hll.  A  bill  of  review  Gray  286.  The  distinction  between 
may  be  brought  without  leave,  to  cor-  bills  of  review  and  bills  in  the  nature 
rect  errors  ajtparent  on  the  face  of  tlie  of  bills  of  review  consists  in  the  en- 
record.  Buckingliamy.  Corning,  2  Stew.  rollment  or  non-enrollment  of  the 
Eq.  238  ;  Webb  v.  Pell,  1  Paige  564.  decree.  The  first  is  brought  when  the 
The  application  for  leave  to  file  a  bill  decree  in  the  cause  has  been  enrolled, 
of  review  is  usually  made  by  petition  ;  Story's  Eq.  PL,  l  421. 


508  FORMS   OF   PLEADINGS. 

complained  of.)  For  all  which  errors  and  imperfections  in  the 
said  decree  appearing  on  the  face  thereof,  your  petitioner  is 
desirous  of  bringing  his  bill  of  review  to  be  relieved  in  the 
premises. 

If  the  petition  be  for  leave  to  file  bill  of  review  for  discovery  of 
new  matter,  add  after  *,  And  your  petitioner  further  shows,  that 
since  the  pronouncing  of  the  said  decree,  your  petitioner  has 
discovered  new  matter  of  consequence  in  the  said  cause;  partic- 
ularly [state  new  matter;)  which  new  matter  your  petitioner 
did  not  know,  and  could  not,  by  reasonable  diligence,  have 
known,  so  as  to  make  use  thereof  in  the  said  cause,  previously 
to  and  at  the  time  of  pronouncing  the  said  decree.  {Conclude 
as  follows,  as  to  either  petition  :) 

Your  petitioner  therefore  prays,  that  he  may  be  at  liberty  to 
file  a  bill  of  review  for  the  purpose  of  having  the  said  decree 
reviewed,  reversed  and  set  aside;  and  that  no  further  proceedings 
may  be  had  under  the  same. 

And  your  petitioner,  &c. 

Order  for  leave  to  file  bill  of  review  on  discovery 

of  new  matter,  (a) 

(Title  of  cause.) 

On  reading  and  filing  the  petition  of  ,  the  defendant, 

praying  for  leave  to  file  a  bill  of  review  in  this  cause,  and  on 
hearing  ,  of  counsel  with  the  petitioner,  and  ,  of 

counsel  with  :  It  is,  on  this  day  of  ,  eighteen 

hundred  and  ,  on  motion  on  behalf  of  the  said  petitioner, 

ordered,  that  the  said  ,  on  depositing  the  sum  of  one  hun- 

(a)  The   rule   is  that   the   matter  bill  of  review.     Dan.  Ch.  Pr.  1582; 

must  not  only  be  new,  but  it  must  be  see  Webb  v.  Pell,  ante.     By  custom  in 

such  as  the  party,  by  the  use  of  rea-  New  Jersey,  the   amount  of  the  de- 

sonable    diligence,    could    not    have  posit  is  the  same  as  that  required  on 

known.     Perkins  v.  Partridge,  3  Steiv.  appeals. 

Eq.  559  ;  see  Putnam  v.  Clark,  9  Sleiv.  Filing  a  bill  of  review  does  not  stay 

Eg.  33,  647.  the  execution  ofthe  decree  complained 

If  a  bill  of  review  is  filed    with-  of.      Williams  v.  Mellish,  1   Vern.  117. 

out  leave,  or  is  inconsistent  with  the  After  a  defendant  has  demurred  to  a 

leave  granted,  it  will  be  ordered  to  be  bill  of  review,  he  cannot  object  to  the 

taken  from  the  file.     BucMngham  v.  right   to   file    it.     Griggs   v.    Gear,  3 

Corning,  supra.     By  the  English  prac-  (r'/Zman  2. 
tice,  a  deposit  is  necessary  on  filing  a 


BILL,    OF    REVIEW.  509 

dred  dollars,  as  security  for  costs,  be  at  liberty  to  file  a  bill  of 
review  touching  the  several  matters  in  the  said  petition  men- 
tioned, and  for  relief  in  the  premises,  as  he  may  be  advised. 

Bill  of  review  for  errors  of  law. 

[Address  ) 
Complaining,  shows  unto  your  Honor  your  orator,  ,  of, 

&c.,  that  on  or  about  the,  &c.,  ,  of  ,  the  defendant 

hereinafter  named,  exhibited  his  bill  of  complaint  in  this  honor- 
able court  against  your  orator,  and  thereby  set  forth  that  (set 
out  the  substance  of  the  original  hill,)  and  praying  [set  out  prayer 
verbatim.)  And  your  orator  being  served  with  a  subpcena  for 
that  purpose,  appeared  and  put  in  his  answer  to  said  bill,  setting 
forth  [here  insert  substance  of  answer.)     And  said  replied 

to  said  answer,  and  issue  having  been  joined,  and  witnesses 
examined  and  the  proofs  closed,  the  said  cause  was  brought  to  a 
hearing  before  your  Honor,  and  on  the  {date)  a  decree  was  pro- 
nounced and  entered,  whereby  it  was  ordered,  adjudged  and 
decreed,  that  [set  out  the  decree,)  as  by  the  said  decree  and  other 
proceedings  now  remaining  of  record  in  this  honorable  court, 
reference  being  thereunto  had,  will  appear.  * 

And  your  orator  further  shows,  that  said  decree  has  been  since 
duly  enrolled;  which  said  decree  your  orator  insists  is  erroneous, 
and  ought  to  be  reviewed,  reversed  and  set  aside  for  many  appar- 
ent errors  and  imperfections,  inasmuch  as  it  appears  {here  set  out 
apparent  errors.)  For  all  which  errors  and  imperfections  in  the 
said  decree,  appearing  on  the  face  thereof,  your  orator  has  brought 
this  his  bill  of  review,  to  be  relieved  in  the  premises. 

In  consideration  whereof,  and  inasmuch  as  such  errors  and 
imperfections  appear  in  the  body  of  the  said  decree,  your  orator 
hopes  that  the  said  decree  will  be  reversed  and  set  aside,  and  no 
further  proceedings  had  thereon. 

To  the  end,  therefore,  that  the  said  may,  upon  his 

oath,  {interrogatories  in  usual  form;)  and  that  for  the  reasons 
and  under  the  circumstances  aforesaid,  the  said  decree  may  be 
reviewed,  reversed  and  set  aside,  and  no  further  proceedings 
taken  thereon. 

[Conclude  with  prayer  for  subpoena  in  usual  form,) 


510 


FORMS   OF   PLEADINGS. 


Bill  of  review  on  discovery  of  new  matter.    As  in 

last  form  to  *,  then  add,  And  your  orator  further  shows,  {here 
state  the  newly-discovered  matter.) 

And  your  orator  is  advised  and  insists,  that  under  the  circum- 
stances aforesaid,  the  said  decree,  in  consequence  of  the  discovery 
of  such  new  matter '  as  aforesaid,  ought  to  be  reviewed  and 
reversed,  and  (add  other  special  relief  desired.)  To  the  end, 
therefore,  &c.,  {as  in  preceding  form.)  And  that  {here  insert 
prayer  for  relief.) 

May  it  please,  &c.,  {prayer  for  subpoena.) 


CROSS-BILL.(a) 

It  is  unnecessary  to  set  forth  a  form  of  this  bill.  It  differs  in 
no  respect  from  the  common  form  of  an  original  bill,  but  must  state 
the  injury  sought  to  be  redressed  ;  in  which  is  generally  included 


(a)  If  a  defendant  has  any  relief  to 
pray  or  discovery  to  seek,  he  must  do 
so  by  a  cross-bill.  Miller  v.  Gregory, 
1  C.  E.  Or.  274 ;  Onderdonk  v.  Gray, 
4  C.  E.  Gr.  65 ;  Leddell  v.  Starr,  4  G. 
E.  Gr.  159;  Scott  v.  Lalor,  Z  C.  E 
Or.  301 ;  Hoff  v.  Burd,  2  G.  E.  Gr. 
301.  There  should  be  as  little  delay 
as  possible  in  filing  a  cross-bill.  When 
such  a  bill  is  necessary,  the  proper  time 
for  filing  it  is  at  the  time  of  putting 
in  the  answer  to  the  original  suit  and 
before  the  issue  is  joined  by  filing  the 
replication.  Stevens  v.  Stevens,  9  C.  E. 
Gr.  11 .  A  cross-bill  against  a  com- 
plainant should,  in  general,  be  filed 
at  the  time  of  filing  the  answer,  and 
in  all  cases  before  closing  the  testi- 
mony. But  the  first  rule  does  not 
apply  to  a  cross-bill  by  one  defendant 
against  another,  nor  does  the  last  to 
cases  in  which  no  testimony  has  been 
taken.  Vanderveer  v.  Holcomb,  6  C.  E. 
Gr.  105.     After  the  filing  of  a  repli- 


cation a  cross-bill  cannot  be  filed 
without  leave  of  the  court.  Leave  to 
file  a  cross-bill  was  granted  on  petition 
after  the  time  limited  in  the  rule  to 
close  testimony,  in  Jackson  v.  Grant, 
3  C.  E.  Gr.  147.  iS^ew  parties  cannot 
be  introduced  into  a  cause  by  a  cross- 
bill. Curtis,  J.,  in  Shields  v.  Barrow, 
17  How.  145.  Nor  can  a  defendant  in 
a  cross-bill  set  up  a  case  inconsistent 
with  the  case  made  in  his  answer  to 
the  original  bill.  Jackson  v.  Grant, 
supra.  Whenever  a  cross-bill  is 
brought  against  a  co-defendant  in  a 
suit,  the  complainant  in  such  suit  must 
be  named  as  a  defendant  together  with 
them.  Coop.  Eq.  Fl.  85.  The  defend- 
ant to  the  original  bill  must  answer 
thereto  before  the  defendant  to  the 
cross-bill  can  be  compelled  to  answer 
such  cross-bill.  Eev.,  "  Chancery," 
§  39.  The  answer  of  the  defendant 
to  the  cross-bill  may  be  considered 
as  substantially  and  for  all  practical 


CROSS- BILL.  511 

ihe  reference  to  the  former  bill ;  pretences  and  charges,  when  neces- 
sary— being  for  the  most  part  pretences  of  some  of  the  allegations 
in  the  original  bill,  and  charges  to  the  contrary — and  lastly,  the 
prayer  for  subpoena,  to  the  end  that  the  defendant  may  answer  the 
premises ;  and  the  court  may  decree  such  relief  as  the  nature  of 
the  case  may  require.     Lube's  Eq.  PI.  229. 

Order  to  stay  proceedings  in  original  suit. (a) 
{Title  of  cause.) 

On  reading  and  filing  the  cross-bill  of  to  the  bill  of 

complaint  of  ,  and  the  affidavit  thereto  annexed :  li  is, 

<fec.,  on  motion,  &c.,  ordered,  that  all  further  proceedings  in  the 
original  suit  commenced  by  the  said  against  the  said 

be  stayed  until  the  said  shall  have  put  in  his  answer  to 

the  said  cross-bill. 

Order   that  original  and   cross-bill   be  heard   to- 
gether. (6) 

{Titles  of  original  cause  and  cross-bill.) 

It  appearing  to  the  court  that  both  the  above-stated  causes  are 
at  issue:  It  is,  on  this,  &c.,  on  motion  of  ,  of  counsel 

purposes  a  replication  to  the  defend-  in  the  original  suit,  the  cross-bill  must 

ant's    answer    to    the    original    bill.  be  verified  on  knowledge  and  not  on 

Whyte  V.  Arthur,  2    C.  E.   Gr.  52L  mere  information  and  belief.    Talmage 

When  a  defendant  desires  such  relief  v.  Pell,  9  Paige  410.     The  filing  of  a 

as  by  the  existing  practice  can  only  be  cross-bill    does    not,   as   a   matter   of 

obtained  by  means  of  a  cross-bill,  it  course,  stay  the   proceedings   in  the 

shall  not  be  necessary  to  file  such  bill  original  suit.     If  the  party  filing  the 

to  obtain  it ;  but  he  may  set  up  in  his  cross-bill  wishes  to  stay  the  cause  upon 

answer  matter  which  would  now  be  the  original  pleadings,  he  should  give 

the  proper  subject  of  a  cross-bill  and  notice  and  apply  to  the  court  for  an 

obtain  relief  thereon.    Rule  206.    The  order  to  that  effect.     Williams  v.  Carle, 

practice  to  be  pursued  in  such  case  is  2  Slock.  543. 

detailed  in  that  rule.     If  no  answer  (6)  An  original  and  cross-cause  are 

is  filed  to  the  answer  by  way  of  cross-  considered  as  one  suit,  and  ordinarily 

bill,   a   decree  pro    confesso  may  be  heard  together,  and  the  rights  of  all 

entered  and  the  complainant  in  the  the  parties  in  respect  to  the  matters 

cross-bill  may  proceed  ex  j)a.rte  as  in  litigated  are   settled   by  one   decree, 

ordinary  cases.  Whyle  v.  Arthur,   2   C.  E.    Gr.   521 ; 

(a)  If  the  complainant  in  a  cross-  Field  v.  Schieffelin,  7  John.  Ch.  252. 
bill  wishes  an  order  to  stay  proceedings 


612 


FOEMS   OF   PLEADINGS. 


with  ,  the  complainant  in  the  cross-bill,  ordered,  that  the 

said  causes  be  brought  on  for  hearing  together,  provided  that 
the  hearing  upon  the  original  bill  shall  not  be  delayed  by  any 
delay  or  neglect  to  proceed  on  the  part  of  the  complainant  in  the 
said  cross- bill. 


CREDITOR'S   BILL. 

Bill  by  a  creditor  to  set  aside  a  conveyance  as 
fraudulent,  and  to  establish  the  lien  of  his  judg- 
ment, (a) 

In  Chancery  of  New  Jersey. 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

Complaining,  shows  unto  your  Honor  your  orator,  ,  of 

the  city  of  ,  in  the  county  of  ,  and  State  of  , 

that  on  and  before  the  day  of  ,  eighteen  hundred 


(a)  A  court  of  equity  has  the  power 
to  aid  a  judgment  creditor  to  roach 
the  property  of  liis  debtor,  either  by 
removing  fraudulent  judgments  or 
conveyances  which  obstruct  the  plain- 
tift''s  remedy  under  the  judgment,  or 
by  appropriating  in  satisfaction  thereof 
rights  or  equitable  interes^ts  of  the  de- 
fendant which  are  not  the  subject  of 
legal  execution.  Bohert  v.  Hodges,  1 
C.  E.  Gr.  299.  An  assignee,  under  an 
assignment  for  the  benefit  of  the  cred- 
itors of  the  assignor  pursuant  to  the  act 
{Bev.  p.  36)  may  file  a  bill  to  set  aside 
a  prior  conveyance  of  lands  made  by 
the  assignor  for  the  purpose  of  defraud- 
ing his  creditors,  if  the  property  so 
conveyed  is  required  for  the  payment 
of  the  claims  of  creditors,  and  credi- 
itors  who  were  intended  to  be  hindered, 
delayed  and  defrauded  by  such  con- 
veyance have  presented  their  claims 
to  the  assignee  for  allowance.  Pills- 
bury  V.  Kmcjon,  6  Stew.  Eq.  287. 


Assignees  under  the  Assignment  act, 
and  executors  and  administrators  of 
insolvent  estates,  are  the  representa- 
tives of  creditors,  and,  as  such,  may, 
for  the  benefit  of  creditors,  set  aside 
conveyances  by  the  assignor  or  the 
decedent,  in  fraud  of  creditors,  to  the 
extent  that  such  property  is  needed 
for  the  payment  of  debts.     Ibid. 

When  a  party  comes  into  the  Court 
of  Chancery  to  obtain  satisfaction  of  a 
judgment,  he  must  present  himself 
under  some  head  of  equity  jurisdic- 
tion; he  must  show  that  the  debtor 
has  made  some  fraudulent  disposition 
of  his  property,  or  that  the  case  stands 
affected  with  soipe  trust,  collusion  or 
injustice  against  which  it  is  the  prov- 
ince of  the  court  to  give  relief.  Dis- 
boroiujh  V.  OtUcali,  Sax.  298.  The 
principle  is  familiar  and  well  estab- 
lished that  in  order  to  enable  »  cred- 
itor to  question  the  conveyance  of  his 
debtor  on  account  of  fraud,  he  must 


creditor's  bill.  513 

and  ,  ,  of  the  city  of  ,  in  the  county  of 

,  and  State  of  ,  was  seized  and  possessed  in  fee 

simple  of  all  those  tracts  or  parcels  of  land  hereinafter  men- 
tioned and  described,  situate  in  said  city  of  ,  in  the  county 
of  ,  and  State  of  ,  that  is  to  say:  {describe  the 
premises.) 

And  your  orator  further  shows,  that  on  or  about  the 
day  of  ,  in  the  year  eighteen  hundred  and  ,  the 

said  being  justly  indebted  to  your  orator  in  the  sum  of 

dollars  and  upwards,  your  orator  then  commenced  an 
action  upon  contract  against  the  said  ,  for  the  recovery  of 

the  said  debt  and  interest  thereon,  in  the  Supreme  Court  of  New 
Jersey;  and  such  proceedings  were  thereupon  had  in  the  said 
suit,  that  afterwards,  to  wit,  on  the  day  of  ,  in  the 

year  last  aforesaid,  your  orator  recovered  a  judgment  against  the 
said  ,  in  the  said  Supreme  Court,  for  the  sum  of 

dollars,  damages,  including  costs,  as  by  the  record  of  the  said 
judgment  now  remaining  in  the  office  of  the  clerk  of  the  said 
Supreme  Court,  at  Trenton,  reference  being  thereunto  had,  will 
more  fully  and  at  large  appear. 

And  your   orator   further   shows,  that   for   the  purpose   of 
obtaining  satisfaction  of  said  judgment,  he  caused  to  be  issued 

have    some    lien    on    the    property.  and  chattels.     Robert  v.  Hodges,  supra. 

Swnyze  V.  Swayze,  1  Stock.  273 ;  Davis  For  it  is  by  the  execution  and  not  by 

V.  Dean,  11  C.  E.  Gr.  436.     If  a  cred-  the  judgment  that  he  acquires  a  lien 

itor   seeks  the  aid  of  the   Court   of  upon  the  personal  property.    Dunham 

Chancery  against  the   real   estate  of  *  v.    Cox,   supra.     The    return    of    the 

his  debtor,  he  must  show  a  judgment  sheriff  to  the  execution  that  the  de- 

at  law  creating  a  lien  on  such  estate.  fendants  are  not  seized  or  possessed  of 

Robert  v    Hodges,  supra;   Bigelow  v.  any  estate,  real  or  personal,  on  which 

Magee,  12  C.  E.  Gr.  392.     It  is  not  he   could   levy,  is  sufficient  to   give 

necessary  for  him  to  take  out  execu-  complainants   a   standing.     Randolph 

tion  upon  his  judgment;  it  is,  perhaps,  v.  Daly,  1  C.  E.  Gr.  313.     The  execu- 

most  advisable  for  him  to  do  so ;  it  tion  must  be   actually  returned  and 

may  avoid  a  contest  with  a  subsequent  filed  before  the  bill  is  filed.     Pardee 

execution  creditor.     Dunham  v.  Cox,  2  v.  De  Cola,  7  Paige  132.     If  several 

Stock.  437 ;   Vanderveer  v.  Stryker,  4  creditors'   suits   are   pending    at  the 

Hal.  Ch.  175.     If  a  creditor  seeks  aid  same  time,  a  decree  may  bs  made  in 

in  regard  to  the  personal  estate,  lie  the  one  first  ready  for  hearing,  though 

must  show  an  execution  giving  him  it  ))e  not  the  suit  first  brought.  Stephen- 

a  legal  preference  or  lien  on  the  goods  son  v.  Ihverners,  9  Gratt.  398. 

2h 


514  FORMS   OF   PLEADINGS. 

thereon  out  of  said  Supreme  Court  a  writ  of  fieri  facias  de  bonis 
et  terris,  tested  on  the  day  of  ,  and  returnable  on 

the  day  of  ,  in  the  year  last  aforesaid,  which  writ, 

having  been  first  duly  recorded,  was  delivered  to  the  sheriff  of 
the  said  county  of  ,  to  whom  it  was  directed,  and  thereby 

he  was  commanded  that  of  the  goods  and  chattels  of  the  said 
,  in  his  county,  he  should  cause  to  be  made  the  said 
sum  of  dollars  so  as  aforesaid  adjudged  to  your  orator; 

and  that  if  sufficient  goods  and  chattels  of  said  in  his 

county  he  could  not  find  whereof  to  make  said  moneys,  he  should 
cause  the  whole  or  the  residue,  as  the  case  might  require,  of  the 
said  moneys  to  be  made  of  the  lands,  tenements,  hereditaments 
and  real  estate  whereof  the  said  was  seized  on  the  said 

day  of  ,  in  the  year  last  aforesaid,  or  at  any  time 

afterwards,  in  whose  hands  soever  the  same  might  be;  and  that 
the  said  sheriff  should  have  those  moneys  before  said  Supreme 
Court,  on  the  return-day  of  said  writ,  to  render  to  your  orator 
in  satisfaction  of  his  said  judgment,  and  that  he  should  have 
then  and  there  the  said  writ. 

And  your  orator  further  shows,  that  ,  sheriff  of  said 

county  of  ,  to  whom   the  said  writ  of  execution  was 

directed  and  delivered,  being  unable  to  find  any  goods  and 
chattels  of  the  said  whereon  to  levy  and  make  the  said 

judgment,  levied  upon  the  lands  and  premises  hereinbefore 
described  as  the  property  of  the  said  ,  as  by  the  writ  of 

execution  or  the  record  thereof,  and  the  return  to  said  writ  thereon 
endorsed,  in  the  office  of  the  clerk  of  the  said  Supreme  Court,  at 
Trenton  aforesaid,  reference  being  thereto  had,  will  more  fully 
and  at  large  appear. 

And  your  orator  further  shows,  that  the  said  ,  being  so 

seized  and  possessed  of  said  tracts  of  lands  and  premises  as  afore- 
said, which  are  of  the  value  of  dollars  and  upwards,  after- 
wards, at  or  about  the  dates  or  times  and  by  the  pretended  deeds 
hereinafter  mentioned,  and  after  the  said  debt  so  due  to  your 
orator  had  accrued  and  become  due  and  payable,  and  in  order  to 
secure  the  said  property  for  his  own  use  and  benefit,  and  protect 
it  from  the  said  claim  of  your  orator,  and  prevent  your  orator 


creditor's  bill.  515 

from  collecting  his  said  debt,  contriving  to  defraud  your  orator, 
did,  by  deed  dated  on  ,  the  day  of  ,  eighteen 

hundred  and  ,  and  recorded  in  Book  of  Deeds 

for  county,  page  ,  pretend  to  convey  the  tract  of 

land  first  above  described,  to  one  ,  who,  by  deed  bearing 

date  the  same  day  and  year  last  aforesaid,  pretended  to  convey 
the  same  tract  to  ,  for  the  nominal  consideration  of  one 

dollar,  which  last- mentioned  deed  was  recorded  in  Book 
of  Deeds  for  said  county  of  ,  page  ;  and  by  another 

deed  dated  the  day  of  ,  in  the  year  last  aforesaid, 

and  recorded  in  Book  of  Deeds  for  the  said  county  of 

,  page  ,  pretended  to  convey  the  tracts  secondly 

and  thirdly  above  described  to  the  said  ,  who,  by  deed 

bearing  date  the  same  day  and  year  last  aforesaid,  and  recorded 
in  Book  of  Deeds  for  said  county  of  ,  page  y 

pretended  to  convey  the  last- mentioned  tract  to  ;   and 

that  the  said  and  ,  in  further  execution  of  said 

fraudulent  design,  by  deeds  dated  the  day  of  ,  in 

the  year  eighteen  hundred  and  ,  pretended  to  convey  all 

the  said  lands  above  described  to  one  ,  which  deeds  last 

mentioned   were  recorded   in   Book  of  Deeds  for   said 

county  of  ,  pages  ;  and  that  the  said  ,  by 

deed  dated  on  the  day  of  ,  in  the  year  last  afore- 

said, and  recorded  in  Book  of  Deeds  for  said  county  of 

,  page  ,  pretended  to  convey  the  said  three  above- 

described  tracts  to  said 

And  your  orator  further  shows,  that  he  has  been  informed 
and  believes  it  to  be  true,  and  therefore  expressly  charges,  that 
no  consideration  whatever  was  paid  for  any  of  the  said  convey- 
ances; and  that  the  said  has  always  held,  occupied, 
possessed  and  enjoyed  and  I'eceived  the  rents  and  profits  of  said 
lands  as  fully  to  all  intents  and  purposes  as  before  the  execution 
of  said  pretended  conveyances. 

And  your  orator  further  shows,  that  he  has  frequently  and  in 
a  friendly  manner  applied  to  the  said  and  ,  to  pay 

the  said  judgment,  or  to  cancel  and  surrender  the  said  fraudulent 
conveyances,  or  to  reconvey  or  cause  to  be  reconveyed  the  said 


516  FORMS  OF   PLEADINGS. 

premises  to  the  said  ,  so  that  they  may  be  sold  under  the 

said  execution  for  the  satisfaction  of  the  said  judgment,  and  a 
good  and  clear  title  given  therefor  to  the  purchaser  thereof,  as  in 
equity  and  good  conscience  they  ought  to  have  done,  and  as  your 
orator  well  hoped  they  would  have  done,  but  which  they  wholly 
refuse  to  do. 

In  consideration  whereof,  and  forasmuch  as  your  orator  is 
remediless  in  the  premises  at  the  common  law,  and  cannot  have 
adequate  relief  except  by  the  aid  of  this  honorable  court : 

To  the  end,  therefore,  that  the  said  and  ,  his  wife, 

and  ,  defendants  hereto,  may,  [without  oath,]  full,  true 

and  perfect  answer  make  to  all  and  singular  the  premises  accord- 
ing to  the  best  of  their  knowledge,  information,  remembrance 
and  belief,  and  that  they  may  set  forth  and  discover  the  real 
estate  belonging  to  the  said  ,  and  conveyed  as  hereinbefore 

mentioned,  and  what  disposition  has  been  made  of,  or  encum- 
brance put  upon,  the  same,  fully  and  particularly,  and  in  whose 
possession  said  real  estate  has  been  since  the  day  of  , 

eighteen  hundred  and  ,  and  whether  the  same  is  encum- 

bered, and  if  so,  in  what  manner,  in  whose  favor,  by  whom,  and 
to  what  amount,  and  whether  such  conveyances  as  before  men- 
tioned were  made  of  the  said  real  estate,  and  if  so,  for  or  upon 
what  consideration,  and  to  whom,  when  and  by  whom,  the  same 
was  paid,  and  who  has  possessed  and  occupied  said  premises,  and 
received  the  rents,  issues  and  profits  thereof  since  the  said  alleged 
or  pretended  conveyances  thereof;  and  that  the  said  defendants, 
or  some  or  one  of  them,  may  be  decreed  to  pay  to  your  orator 
the  full  amount  due  and  owing  to  him  on  the  said  judgment, 
with  the  interest,  costs  and  execution  fees  accrued  thereon ;  and 
that  the  said  fraudulent  conveyances,  and  all  other  fraudulent 
conveyances  and  encumbrances,  made,  created  or  suffered  between 
the  said  defendants  and  aiFecting  the  said  lands,  may  be  set  aside 
and  declared  null  and  void ;  and  that  the  said  lands  may  be  sold 
free,  clear  and  discharged  of  and  from  the  said  fraudulent  deeds 
and  all  other  fraudulent  deeds  and  encumbrances  under  the  said 
writ  of  execution  or  otherwise,  and  the  proceeds  thereof,  or  such 
part  of  the  same  as  may  be  necessary,  may  be  applied  to  the  pay- 


cbeditor's  bill.  517 

ment  of  your  orator's  said  judgment;  and  that  your  orator  may 
have  such  other  or  further  relief  in  the  premises  as  the  nature  of 
the  case  may  require,  and  as  may  be  agreeable  to  equity  and  good 
conscience. 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
to  your  orator  the  state's  writ  of  subpoena,  issuing  out  of  and 
under  the  seal  of  this  honorable  court,  directed  to  the  said 
and  ,  and  ,  therein  and  thereby  commanding  them 

and  each  of  them,  at  a  certain  day  and  under  a  certain  penalty 
to  be  therein  expressed,  personally  to  be  and  appear  before  your 
Honor  in  this  honorable  court,  then  and  there  to  answer  the 
premises,  and  to  stand  to,  abide  by  and  perform  such  order  and 
decree  therein  as  to  your  Honor  shall  seem  meet,  and  as  shall  be 
agreeable  to  equity  and  good  conscience. 

And  your  orator  will  ever  pray,  &c. 

{Signature  of  solicitor  and  counsel  with  complainant.) 

Notice  of  lis  pendens. (a) 

{Title  of  cause.)  \         O^  bill,  &c. 

J  Lis  pendens. 

Take  notice,  that  a  suit  entitled  as  above  set  forth  has  been 
commenced  and  is  pending  in  the  Court  of  Chancery  of  the 

(a)  Neither  the  issuing  of  a  sub-  notice  of  ihe  pendency  of  such  suit, 
pwna  or  other  process,  nor  the  tiling  setting  forth  the  title  of  the  cause  and 
of  a  bill  in  Chancery  affecting  the  the  general  object  thereof,  together 
possession  of  or  title  to  lands  or  real  with  a  description  of  the  lands  or 
estate,  nor  any  proceedings  had  or  to  real  estate  to  be  affected  thereby  ; 
be  had  thereon  before  a  final  decree,  notliing  in  this  section  contained  shall 
shall  be  deemed  or  taken  to  be  con-  be  cons-trued  or  taken  to  apply  to  any 
structive  notice  to  any  bona  fide  pur-  bill  tiled  for  the  satisfaction  or  fore- 
chaser  or  mortgagee  of  any  lands  or  closure  of  any  duly  registered  mort- 
real  estate  to  be  affected  thereby,  gage.  Rev.  Sup.,  "Lis  Pendens,"  I  1. 
until  the  complainant  in  such  bill  or  In  case  the  complainant  named  in 
his  solicitor  shall  have  first  filed  in  such  bill  does  not  take  steps  to  prose- 
the  office  of  the  clerk  of  the  Court  of  cute  the  suit  diligently  within  three 
Common  Pleas  of  the  county  (or  in  years  after  the  filing  of  sucli  written 
the  ottice  of  the  register  of  deeds  and*  notice  of  the  pendency  of  such  suit, 
mortgages,  where  such  office  exists,)  tlien  tlie  Chancellor  may,  upon  appli- 
in    which   such    lands    lie,  a  written  cation  to  him  by  any  interested  party, 


518 


FORMS   OF   PLEADINGS. 


State  of  New  Jersey.     That  the  general  object  of  the  said  suit  is 
{state  generally  the  object,  according  to  the  prayer  of  the  bill.) 

That  the  lands  and  real  estate  to  be  affected  by  said  suit  are 
described  as  follows,  to  wit,  (set  forth  the  description  as  contained 

in  the  bill.) 

[Signature  of  complainant  or  his  solicitor.) 
(Date.) 


-and  upon  notice  to  the  complainant 
or  liis  solicitor,  declare  the  tiling  of 
Euch  notice  to  be  null  and  void  and  of 
no  effect.  Pamjjh.  L.,  1888,  p.  427. 
Whenever  a  final  decree  shall  be 
made  in  favor  of  the  defendants  in 
any  cause  relating  to  or  afifecting  the 
possession  of  or  title  to  any  lands  and 
real  estate,  notice  of  the  pendency  of 
which  has  been  filed  in  the  office  of 
any  county  clerk  or  register,  it  shall 
be  the  duty  of  the  said  clerk  or 
register  to  enter  upon  the  margin  of 
the  record  of  such  notice,  a  statement 
of  the  substance  of  such  decree,  upon 
a  copy  thereof,  certified  under  the  seal 
of  the  Court  of  Chancery,  being  filed 
in  his  office,  and  thereafter  the  lands 
and  real  estate  mentioned  in  the  said 
notice  shall  )je  and  remain  discharged 
of  all  equities  set  up  in  the  bill  of 
<;omplaint  in  said  suit,  notwithstand- 
ing the  said  suit  be  thereafter  re- 
vived. Rev.  Sup.,  "Lis  Pendens,"  | 
4.  In  all  suits  instituted  in  the 
Court  of  Chancery  for  the  enforce- 
ment of  any  claim  for  the  payment  of 
money  upon  the  lands  and  real  estate, 
(except  for  the  foreclosure  of  a  mort- 
,gage,)  and  notice  of  the  pendency  of 
wliich  shall  be  filed  in  the  office  of 
any  county  clerk  or  register,  it  shall 
be  lawful  for  the  Chancellor  to  make 
an  order  discharging  the  said  lands 
and  real  estate  from  such  claim,  upon 
the  defendant's  giving  sufficient  and 
satisfactory  security,  in  such  sum  and 
manner  as  the  Chancellor  may  direct, 
for  the  payment  of  such  sum  of  money 


as  may  by  the  final  determination  of 
the  said  cause  be  chargeable  upon  the 
said  lands  and  real  estate,  and  upon 
filing  a  copy  of  said  order,  certified 
under  the  seal  of  the  Court  of  Chan- 
cery, with  the  county  clerk  or  register, 
he  shall  make  entry  of  said  discharge, 
by  reason  of  said  order,  on  the  margin 
of  the  record  of  said  notice,  and  the 
said  lands  and  real  estate  shall  be 
thereafter  discharged  from  any  claim 
which  may  be  made  in  the  said  suit, 
except  such  as  may  be  covered  by  the 
security  given  for  the  payment  of  such 
claim.  /(/.,  I  5.  When  any  decree 
made  in  the  Court  of  Chancery  in 
any  suit  of  the  pendency  of  which 
notice  shall  be  filed  in  the  offices  of 
the  clerk  of  the  Court  of  Common 
Pleas  or  the  register  of  deeds,  shall  be 
paid,  satisfied  or  performed,  or  when, 
pending  such  suit,  the  matters  in  dif- 
ference between  the  parties  thereto 
shall  be  settled  by  the  parties,  or 
such  suit  shall  be  abandoned  by  the 
complainant,  a  statement  of  such  pay- 
ment, performance,  satisfaction,  settle- 
ment or  abandonment  of  such  suit 
may  be  entered  by  the  solicitor  of  the 
party ;  *  *  *  the  lands  and  real 
estate  affected  by  said  suit  and  men- 
tioned in  such  notice  shall  be  dis- 
charged of  all  equities  set  up  in  the 
bill  of  complaint  in  said  suit,  by  the 
entry  on  the  margin  of  the  record  of 
the  notice  of  the  pendency  of  such 
suit  of  satisfaction  and  discharge, 
which  satisfaction  and  discharge  shall 
be   entered    by   the   party   receiving 


creditor's  bill.  519 

Notice  of  motion  for  receiver  in  creditor's  suit. 

{Title  of  cause.) 
The  defendant  will  take  notice,  that  upon  the  papers  on  file  in 
this  cause,  we  shall  apply  to  the  Chancellor,  at  the  state-house, 
in  Trenton,  {or  as  the  case  may  be,)  on  the  day  of  , 

A.  D.  eighteen   hundred   and  ,  at   ten   o'clock   A.   m., 

or  as  soon  thereafter  as  counsel  can  be  heard,  for  the  appoint- 
ment of  a  receiver  of  the  effects  of  said  defendant,  as  prayed 
for  in  the  bill  on  file,  and  for  an  order  requiring  said  defendant 
to  appear  before  one  of  the  masters  in  chancery  of  said  court, 
and  execute  an  assignment  of  his  property  and  effects  to  such 
receiver,  and  to  submit  to  an  examination  on  oath  as  to  his 
property  and  effects  for  the  information  of  such  receiver. 

{Signature  of  complainant's  solicitor.) 

Decree  on  creditor's  bill  to  set  aside  a  fraudulent 
conveyance,  &c. 

{Title  of  cause.) 

This  cause  coming  on  to  be  heard  ex  parte  on  the  bill  in  this 
cause,  on  the  day  of  ,  eighteen  hundred  and  , 

before  his  Honor  the  Chancellor,  at  [the  state-house,  in  the  city  of 
,]  in  the  presence  of  ,  of  counsel  for  the  complainant, 

(no  one  appearing  on  behalf  of  the  defendants,  the  said  bill  hav- 
ing been  heretofore  taken  as  confessed  against  them,)  whereupon 
and  upon  reading  the  said  bill  and  the  proofs  in  the  cause,  and 
it  appearing  to  the  Chancellor  that  the  several  deeds  of  convey- 
ance in  the  said  bill  mentioned  and  described,  for  the  lands  and 
premises  therein  set  forth,  were  made  and  executed  with  the 

satisfiiction  or  his  solicitor,  or  by  the  subpwna.     Haughivout   v.    Murphy,    6 

clerk    or   register   of    deeds   of    the  C.  E.  Gr.llS;  1  C.  E.  Gr.  5S1.     Lis 

proper   county,   upon   receiving   and  pendens  filed  without  any  bill  having 

filing  a  warrant  or  authority  for  the  been  iiled  as  constructive  notice,  is  a 

purpose,  executed  by  the  party  or  his  nullity.     Walker  v.  Hill's  Exrs,  7  C. 

solicitor  in  the  manner  provided  by  E.  Gr.  514.     A   conveyance   by   the 

law  in  respect  to  the  satisfaction  of  defendant  after  the  filing  of  tlie  notice 

judgments.     Rev.  Sup.,  "Chancery,"  ?  cannot    affect    comi)lainant's    rights, 

10 ;  liev.  Sup.,  "Li,^  Pendens,'"  ^  7.  Beeckman   v.  MonUjomery,  1    McCart. 

The  notice  of  Lis  pendens  only  takes  107. 
•effect   from  the  time  of  serving   the 


520  FORMS   OF   PLEADINGS. 

intent  to  defraud  the  complainant  as  a  creditor  of  the  defendant, 

,  and  that  the  said  complainant  is  entitled  to  the  relief 
prayed  for  in  his  said  bill  of  complaint:  It  is  thereupon,  on  this 

day  of  ,  eighteen  hundred  and  ,  on  motion 

of  ,  of  counsel  with  the  complainant,  ordered,  adjudged 

and  decreed,  and  the  said  Chancellor,  by  virtue  of  the  power 
and  authority  of  this  court,  does  hereby  order,  adjudge  and 
decree,  that  the  said  deeds  of  conveyance  in  said  bill  mentioned 
and  described,  for  the  tracts  of  land  respectively  therein  set  forth, 
that  is  to  say,  the  deed  of  conveyance  made  by  the  defendant, 

and  ,  his  wife,  to  the  defendant,  ,  bearing 

date  the  day  of  ,  eighteen  hundred  and  ,  and 

recorded  in  Book  of  Deeds  for  said  county,  page 

;  also  the  deed  of  conveyance  made  by  the  said  to 

the  said  ,  bearing  date  the  same  day  and  year  last  afore- 

said, and  recorded  in  Book  of  Deeds  for  said  county,  page 

,  be  set  aside,  annulled  and  made  void  as  against  the 
judgment  "and  execution"  of  the  said  complainant  in  said  bill 
set  forth  and  described;  and  that  the  defendants  do  pay  the 
costs  of  the  complainant  in  this  cause  to  be  taxed,  and  that  the 
complainant  have  execution  therefor  according  to  the  course  and 
practice  of  this  court. 

And  it  is  further  ordered,  that  unless  the  defendants  shall, 
within  ten  days  after  service  upon  them  of  a  copy  of  this  decree 
and  of  the  taxed  bill  of  costs,  pay  to  the  complainant  or  to  his 
solicitor  the  amount  due  to  him  upon  his  judgment  in  this  cause 
referred  to,  and  the  taxed  costs  of  this  suit,  the  sheriff  of  the 
said  county  of  ,  to  whom  was  directed  and  delivered  the 

writ  of  Jieri  facias  de  bonis  et  terris,  issued  out  of  the  Supreme 
Court  of  New  Jersey,(a)  at  the  suit  of  the  said  complainant 
against  the  said  ,  and  in  said  bill  mentioned  and  set  forth, 

do  proceed  to  sell  the  said  tracts  of  land  and  premises,  free,  clear 
and  discharged  of  and  from  the  said  deeds  of  conveyance,  and 
of  and  from  all  claims  of  the  said  thereunder  or  by  virtue 

thereof. 

(a)  Where,  as  sometimes  happens,       was  not  in  the  defendant,  an  execution 
there  lias  been  no  levy  on  the  land       may  be  issued  out  of  this  court. 
under  the  execution  because  the  title 


CREDITOR  S    BILL. 


521 


Bill  by  an  attaching  creditor  for  his  own  benefit 
and  that  of  others  who  shall  come  in,  &c.(a) 

In  Chancery  of  New  Jersey. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

Complaining,  shows  unto  your  Honor,  your  orator,  ,  of 

,  in  the  State  of  ,  that  your  orator  is  a  creditor  of 


(a)  The  principle  is  familiar  and 
well  established  that  in  order  to  enable 
a  creditor  to  question  the  conveyance 
of  his  debtor  on  account  of  fraud,  he 
must  have  some  lien  on  the  property, 
Swayze  v.  Swayze,  1  Stock.  273 ;  Davis 
V.  Dean,  11  C.  E.  Or.  436,  and  eases 
cited.  The  real  ground  fur  not  sus- 
taining the  bill  of  a  general  creditor 
against  the  fraudulent  disposition  of 
his  debtor's  property  is,  that  the  debt 
is  no  charge  or  lien  upon  the  prop- 
erty of  the  debtor.  Oakley  v.  Pound, 
1  McCttrt.  178.  There  can  be  no  ex- 
ception to  the  rule.  Young  v.  Trier, 
1  Stock.  4G5,  overruling  Blackwell  v. 
Rankin,  3  Hal.  Ch.  153;  see  Reese 
River  Mining  Co.  v.  Atwell,  L.  R.,  7 
Eq.  347. 

An  attaching  creditor  has,  even 
before  judgment  in  the  attachment, 
such  lien  on  the  property  of  the  de- 
fendant in  attachment  as  will  enable 
him  to  maintain  a  suit  in  chancery  to 
set  aside  a  fraudulent  conveyance,  or 
judgments  under  which  the  property 
attached  is  claimed.  JSunl  v.  Field, 
1  Stock.  36;  Willia^ns  v.  Miehtnor,  3 
Stock.  520 ;  Robert  v.  Hodges,  1  C.  E. 
Gr.  299 ;  Curry  v.  Glass,  10  C.  E.  Gr. 
K)8.  In  such  case  the  bill  should  be 
for  the  benefit  of  the  complainant  anil 
such  others  of  the  creditors  as  shall 
come  in  and  seek  relief  by,  and  con- 
tribute to  the  expenses  of,  the  suit, 
and  should  allege  for  what  amount 
the  attachment  was  issued,  that  it 
was  executed,  and  what  property  was 


attached,  and  should  make  the  de- 
fendant in  attachment  a  party.  Hunt 
V.  Field,  supra.  Mortgage  and  judg- 
ment creditors  are  necessary  parties, 
but  creditors  who  have  been  admitted 
under  the  attachment  are  not.  Wil- 
liams V.  Michenor,  supra.  A  creditor 
admitted  as  such  by  rule  under  an 
attachment,  has  a  lien  on  the  prop- 
erty attached,  which  entitles  him  to 
maintain  such  a  bill.  Curry  v.  Glass, 
supra.  In  such  case  it  is  not  neces- 
sary that  the  consideration  of  the 
debt  should  be  stated  in  the  bill. 
The  claim  of  the  creditor  appearing 
in  the  bill,  verified  by  affidavit,  as 
required  by  the  statute,  is  a  subsi sting- 
debt  for  the  purpose  of  creating  the 
lien.  Curry  v.  Glass,  supra.  A  gen- 
eral creditor  cannot  unite  with  a 
creditor  at  large  in  such  a  bill, 
Fleischman  v.  Young,  1  Stock.  622 ; 
Haggerty  v.  Nixon,  11  C.  E.  Gr.  42. 
In  Edgar  v.  Clevenger,  1  Gr.  Ch.  258, 
the  complainant  was  permitted,  after 
a  decree  p>^'o  confesso  against  the  de- 
fendant, and  an  ex  parte  hearing  upon 
the  evidence,  to  file  a  supplemental 
bill,  in  order  to  incorporate  in  the 
record  the  facts  that  after  the  com- 
mencement of  his  suit  in  chancery 
the  complainant  obtained  a  judgment 
and  sued  out  execution  at  law. 

A  judgment  creditor  cannot  lose 
his  lien  or  priority  by  being  omitted 
as  a  defendant.  Voorhess  v.  Reford,  1 
McCart.  155. 


522  FORMS   OF   PLEADINGS. 

one  ,  a  resident  of  the  State  of  ,  and  he  exhibits 

this  his  bill  of  complaint  for  his  own  benefit  and  the  benefit  of 
such  other  creditors  of  the  said  as  shall  come  in  under 

this  bill  and  contribute  to  the  expenses  of  this  suit. 

That  on  the  day  of  ,  eighteen  hundred  and 

,  the  said  was  and  still  is  indebted  to  your  orator 

in  about  the  sum  of  dollars,  being  for   principal   and 

interest  due  to  your  orator  from  the  said  on  the  judgments 

following,  that  is  to  say :  {describe  judgments.) 

And  your  orator  further  shows,  that  the  said  ,  being  so 

indebted  to  your  orator  in  the  said  sum  of  dollars,  and 

then  being  a  resident  of  the  State  of  ,  your  orator, 

on  or  about  the  day  of  ,  eighteen  hundred  and 

,  then  made  oath,  before  ,  a  master  in  chancery  of 

the  State  of  New  Jersey,  that  the  said  was  indebted  to 

your  orator  in  the  sum  of  dollars,  as  nearly  as  your  orator 

could  specify  the  same;  and  that  the  said  resided  in  the 

State  of  ,  and  was  not,  to  the  knowledge  or  belief  of  your 

orator,  resident  at  that  time  in  the  State  of  New  Jersey;  that 
the  said  oath  was  delivered  to  the  clerk  of  the  Circuit  Court 
holden  at  ,  in  and  for  the  county  of  ,  in  the  State 

of  New  Jersey,  on  the  day  of  ,  eighteen  hundred 

and  ,  and  by  him  filed  in  his  office  on  the  day  last  men- 

tioned; and  thereupon  the  said  clerk  sealed  a  writ  of  attach- 
ment, and  issued  the  same  out  of  the  said  Circuit  Court,  directed 
to  the  sheriff  of  the  county  of  aforesaid,  tested  on  the  said 

day  last  mentioned,  and  returnable  on  the  day  of  , 

eighteen  hundred  and  ,  whereby  the  said  sheriff  was  com- 

manded to  attach  the  rights  and  credits,  moneys  and  effects, 
goods  and  chattels,  lands  and   tenements  of  the  said  , 

wheresoever  they  might  be  found,  so  that  the  said  might 

be  and  appear  before  the  said  court  on  the  said  day  last  men- 
tioned, to  answer  your  orator  of  a  plea  that  he  render  to  your 
orator  the  sum  of  dollars,  which  to  him  he  owed  and  from 

him  unjustly  detained;  and  said  clerk  also  forthwith  entered,  in 
a  book  provided  and  kept  for  that  purpose,  the  names  of  your 
orator  as  plaintiff,  and  of  the  said  as  defendant  in  the  said 

suit,  the  sum  or  amount  therein  specified,  and  at  the  time  of 


creditor's  bill,.  523 

issuing  or  sealing  the  same;  that  the  said  writ  of  attachment 
was,  on  the  said  day  of  ,  eighteen  hundred  and 

,  delivered  to  the  said  sheriff  of  the  said  county  of  ; 

and  the  said  sheriff,  on  the  day  of  ,  eighteen  hun- 

dred and  ,  went  to  the  house  of  said  on  the  land  of 

the  said  ,  in  the  inventory  of  said  sheriff  hereinafter  men- 

tioned, and  then  and  there  declared,  in  the  presence  of  one  cred- 
ible person,  that  he  attached  the  rights  and  credits,  moneys  and 
effects,  goods  and  chattels,  lands  and  tenements  hereinafter 
described  of  the  said  at  the  suit  of  your  orator,  and  the 

said  sheriff  did  then  and  there,  with  the  assistance  of  a  discreet 
and  impartial  freeholder,  make  a  just  and  true  inventory  and 
appraisement  of  all  the  property  and  estate  of  the  said  , 

that  is  to  say :  (describe  premises,)  so  by  him  attached ;  and  such 
inventory  and  appraisement,  dated  and  signed  by  himself  and 
the  said  freeholder,  said  sheriff  annexed  to  and  returned  with  the 
said  writ,  which  has  been  returned,  and  the  said  sheriff  also 
endorsed  on  the  said  writ  the  true  time  of  executing  the  same, 
and  signed  his  name  thereto,  to  which  said  affidavit,  writ,  inven- 
tory, return  and  appraisement  your  orator,  for  greater  certainty, 
prays  leave  to  refer. 

And  your  orator  further  shows,  that  the  said  is  the 

owner  of  the  said  lands  so  by  said  sheriff  attached;  but  your 
orator  is  unable  effectually  to  obtain  the  benefit  of  the  said 
attachment,  or  to  enforce  the  same  upon  and  against  the  said 
lands  of  the  said  ,  inasmuch  as  the  truth  is,  and  your 

orator  charges,  that  although  the  said  ,  on  or  about  the 

day  of  ,  eighteen  hundred  and  ,  by  deed  of 

conveyance  thereof  from  the  owners  of  said  lands,  became  the 
purchaser  thereof  and  seized  of  an  estate  in  fee  simple  therein, 
he  did  not  record  the  said  deed  until  the  day  of  , 

eighteen  hundred  and  ,  and  although  the  said  has 

remained  in  possession  of  said  lands  so  far  as  any  possession  has 
been  had  thereof  by  any  one  up  to  the  time  of  filing  this  bill ; 
yet  your  orator  charges  that  he,  on  or  about  the  day  of 

,  eighteen  hundred  and  ,  for  the  purpose  of 

defrauding  his  creditors,  and  your  orator  in  particular,  and 
-delaying  them  and  him  in  the  collection  of  their  and  his  debts, 


524  FORMS   OF   PLEADINGS. 

and  to  embarrass  them  and  him  in  enforcing  their  and  his  claims 
against  him,  and  to  conceal  his  properiy,  by  a  deed  bearing  date 
on  the  day  and  year  last  aforesaid,  and  recorded  days 

afterwards,  executed  by  him  and  his  wife,  ,  granted,  bar- 

gained and  sold  and  conveyed  unto  one  ,  an  attorney-at- 

law  at  ,  in  the  State  of  ,  and  to  his  heirs  and  assigns 

forever,  the  said  lots  of  land  so  attached  as  aforesaid ;  that 

said  conveyance  to  said  was  made  without  any  valuable  or 

lawful  consideration  paid  whatever,  although  the  deed  for  said 
lands  states  a  consideration  of  dollars;  that  at  the  time  of 

the  conveyance  by  said  to  said  of  said  lands,  the 

said  executed  to  the  said  a  mortgage  for 

dollars,  which,  together  with  a  mortgage  originally  given  by 
to  his  grantors,  for  dollars,  would  make  up  the 

consideration  mentioned  in  said  deed  to  said  ;  that  said 

mortgage  by  said  was  canceled  on  the  day  of 

,  eighteen  hundred  and  ,  although  the  said, 

has  never  paid  it,  or  any  part  thereof,  or  the  interest  thereon; 
and  the  interest  on  said  mortgage  by  said  to  his  grantors 

has  been  paid  by  said  ,  or  out  of  his  funds,  or  may 

have  been  in  some  cases  advanced  or  loaned  by  said  , 

although  the  interest  may  have  been  recently  paid  in  the  name 
of  said 

And  your  orator  charges,  that  many  of  the  receipts  for  interest 
on  said  mortgage  so  given  by  said  are,  since  his  convey- 

ance to  said  ,  in  the  name  of  said  ;  that  the  said 

lands  are  held  by  the  said  merely  to  oblige  the  said 

and  in  trust  for  him,  or  are  held  by  him  for  the  purpose  of  aid- 
ing and  abetting  the  said  in  concealing  the  said  lands 
from  his  creditors,  and  delaying  and  defrauding  his  creditors; 
that  the  said  has  stated  to  several  persons,  and  among  the 
rest  to  one  ,  that  the  said  lands  were  conveyed  by  him  to 
the  said  to  protect  the  same  from  his,  the  said  's, 
creditors;  and  that  the  said  conveyance  was  a  confidential  matter 
between  him  and  the  said  ,  and  in  reference  to  the  mort- 
gage given  by  to  him  for  dollars,  as  part  of  the 
pretended  purchase  money ;  said  further  stated,  that  said 
had  behaved  magnificently  in  covering  himself  with  a 


creditor's  bill.  525 

heavy  obligation,  which  was  never  designed  to  be  enforced,  and 
subjecting  himself  thereby,  in  case  of  the  death  or  bad  faith  of 
said  ,  to  great  hazard  of  loss  and  inconvenience. 

And  your  orator  charges,  that  said  statements  of  said  , 

above  mentioned,  are  true,  and  that  said  is  reputed  to  be 

insolvent  and  unable  to  pay  his  debts. 

And  your  orator  is  advised  by  counsel  and  insists,  that  the 
said  lands  so  attached  under  the  said  writ  of  attachment  are,  in 
equity,  subject  to  the  lien  and  operation  of  the  said  attachment, 
and  the  levy  and  inventory  made  under  the  same.(a) 

And  your  orator  further  shows,  that  he  fears  that  unless 
restrained  by  the  writ  of  injunction  of  this  honorable  court,  the 
said  and  will  transfer  and  convey  said  lands  to 

some  bona  fide  purchaser,  whereby  your  orator  may  be  deprived 
of  realizing  the  said  money  due  him  from  said  out  of  said 

lands. 

And  your  orator  further  shows,  that  he  has  applied  to  the 
said  and  ,  or  one  of  them,  to  satisfy  his  said  claim, 

but  the  said  defendants  refuse  to  comply  with  his  request. 

All  which  actings  are  contrary  to  equity,  and  tend  to  the 
manifest  wrong  and  injury  of  your  orator  in  the  premises. 

In  consideration  whereof,  and  forasmuch  as  your  orator  has  no 
adequate  remedy  in  the  premises,  except  in  this  honorable  court : 

To  the  end,  therefore,  that  the  said  and  may 

answer  the  premises  according  to  law,  and  may,  in  particular, 
set  forth  and  show  whether  there  was  any  consideration  paid  by 
the  said  for  the  said  conveyance  to  him  of  said  lands  by 

said  and  his  wife,  and  if  so,  what  the  same  was  in  partic- 

ular, and  when  it  was  paid,  and  where  and  who  were  present; 
and  whether  the  whole  consideration  was  not  the  said  mortgage 
so  given  by  said  ,  and  if  not,  what  other  or  further  con- 

sideration ;  and  whether  said  has  ever  paid  anything,  and 

what  and  with  whose  moneys  or  property  on  account  of  said 
mortgage  so  given  by  him  to  said  ,  or  any  interest  thereon, 

(a)  Moneys  in  tlic  Iiands  of  a  are  "liable  to  seizure  by  virtue  of  a 
sheriff;  raised  by  him  in  pursuance  of  writ  of  attachment.  Conover  v.  liuck- 
a  decree  of  the  Court  of  Chancery,      man,  6  Stew.  Eq.  303. 


526  FORMS   OF   PLEADINGS. 

and  to  whom,  and  when  and  where,  and  who  were  present,  and 
of  what  said  payment  consisted,  and  who  has,  in  fact,  attended 
to  and  paid  the  interest  on  the  said  mortgage  given  by  , 

and  where  and  when,  and  how  much,  and  who,  at  the  time  of 
filing  this  bill,  has  the  receipts  for  interest  on  said  last-mentioned 
mortgage,  and  where  he  has  the  same,  and  what  said  receipts  are 
or  were,  and  to  whom  they  are  or  were  given ;  and  whether  the 
said  does  not  now,  or  did  not  at  some  time  heretofore, 

hold  said  lands  in  trust  for  said  or  some  other  person,  and 

whom,  and  how  such  trust  was  created  or  is  manifested  at  the 
time  of  filing  this  bill,  and  when  it  was  created  or  reduced  to 
writing,  if  it  ever  has  been  so  reduced ;  and  under  what  agree- 
ment, arrangement  or  understanding,  express  or  implied,  the 
said  conveyance  of  said  lands  was  made  to  said  ,  and  with 

what  intention,  and  what  reasons  said  gave  to  said 

for  desiring  him  to  take  said  conveyance;  and  whether  said 
is  not  insolvent,  and  has  not  for  that  reason  held  all  his 
visible  property  of  any  considerable  value  in  his  wife's  name,  or 
the  name  or  names  of  some  other  person  or  persons;  and  whether 
the  statements  set  forth  in  this  bill,  as  having  been  made  by 
him,  are  not  substantially  true,  and  if  not  wholly  true,  what 
part  of  said  statements  is  true,  and  may  show  what  the  real  fact 
is  or  was;  and  how  the  said  came  to  take  the  title  of  or 

purchase  said  lands  in  New  Jersey,  and  if  he  has  ever  seen  said 
lands;  and  whether  he  had  of  his  own  sufficient  means  to  pay 
off  the  said  mortgage  so  by  him  given  to  said  ;  and  what 

is  the  business  occupation  or  profession  of  said  ;    and 

whether  said  is  not,  in  fact  and  in  truth,  the  real  owner 

of  said  lands,  subject  to  the  legal  encumbrances,  and  what  are 
the  terms  of  said  bond  and  mortgage  so  given  by  said  to 

said  ,  and  why  the  same  was  paid  off  before  it  was  due, 

if  it  was  paid  off;  and  that  said  attachment  may  be  declared  to 
be  a  lien  on  said  lands;  and  that  the  said  deed  of  conveyance  so 
made  by  said  and  ,  his  wife,  to  the  said  , 

may  be  declared  and  decreed  to  have  been  given  with  the  intent 
to  delay,  hinder  and  defraud  the  creditors  of  the  said  , 

and  to  be  fraudulent  and  void  as  against  your  orator  and  all 
other  creditors  who  shall  come  in  under  said  attachment  and 


creditor's  bill.  52T 

contribute  to  the  expenses  of  this  suit,  and  that  the  same  may  be 
delivered  up  to  be  canceled,  or  if  it  be  more  equitable,  that  the 
said  may  be  declared  and  be  decreed  to  be  a  trustee  for 

your  orator  and  such  creditors;  or  that  the  said  lands  may  be 
sold  under  the  said  attachment  or  by  the  decree  of  this  honorable 
court,  and  out  of  the  proceeds  of  such  sale,  your  orator  and  such 
other  creditors  may  be  paid  their  debts ;  and  that  the  said 
and  may  join  in  the  conveyances  to  the  purchasers  of 

said  lands,  if  it  be  necessary  so  to  do;  and  that  in  the  meantime 
the  said  and  may,  by  the  injunction  of  this  honor- 

able court,  be  restrained  from  conveying  or  encumbering  the 
said  lands;  and  that  your  orator  may  have  such  further  or  other 
relief  as  to  your  Honor  shall  seem  meet,  or  as  shall  be  required 
by  the  circumstances  of  the  case. 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
unto  your  orator  not  only  the  state's  writ  of  injunction,  issuing 
out  of  and  under  the  seal  of  this  honorable  court,  directed  to  ' 
the  said  and  ,  requiring  and  commanding  them 

absolutely  to  desist  and  refrain  from  conveying  or  encumbering 
said  lands,  until  the  further  order  of  this  honorable  court,  but 
also  the  state's  writ  of  subpoena,  &c. 

And  your  orator  will  ever  pray,  &c. 

{Signature  of  solioitor  and  counsel  with  complainant.) 

Petition  by  creditor  to  be  admitted  as  a  party 
complainant  in  a  case  under  the  general  equity 
jurisdiction  of  the  court,  filed  by  a  creditor  on 
behalf  of  himself  and  others.(a) 

{Title  of  cause  and  address.) 
The  petition  of  respectfully  shows,  that  the  bill  in  this 

cause  is  a  creditor's  bill,  filed  by  the  complainant,  ,  a 

judgment  creditor  of  ,  for  the  benefit  of  himself  and  all 

(a)  Where  a  creditor  files  a  bill  in  decree,  and  be  joined  as  parties  coni- 

behalf  of  himself  and  all  others  who  plainant.     No  notice  of  such  an  ap- 

may  corjie  in  and  participate  in   the  plication   is   required.     The  Bunk  v. 

burthens  and  the  benefits,  the  otliers  Dugav,  2  Bland  254 ;   Strike  v.  Mc- 

are  allowed  to  come  in  on  petition  at  Donald,  2  Har.  &  GUI  191 ;  Wllliam- 

any  time,  either   before  or  after   the  son.  v.  Wilson,  1  Bland  434.    After  the 


•528  FORMS   OF   PLEADINGS. 

the  other  creditors  of  said  who  shall  in  due  time  come  in 

and  contribute  to  the  expenses  of  this  suit ;  that  the  bill  was 
filed  for  the  purpose  of  subjecting  certain  real  estate  which  has 
been  conveyed  to  the  defendant,  ,  to  the  payment  of  the 

debts  of  the  said  ;  that  your  petitioner  is  a  creditor  of 

the  said  ;  that  his  debt  consists  of  a  judgment  recovered 

against  said  by  ,  in   the  New  Jersey  Supreme 

Court,  on   the  day  of  ,  eighteen   hundred   and 

,  for  dollars,  together  with  lawful  interest  on  said 

sum  from  the  date  of  the  recovery  of  said  judgment,  which 
judgment  was  assigned  by  the  said  to  your  petitioner. 

And  your  petitioner  now  holds  said  judgment  wholly  unpaid 
and  uncanceled  of  record,  and  is  willing  to  contribute  to  the 
expenses  of  this  suit,  and  prays  that  he  may  be  admitted  as  a 
complainant  herein. 

{Signature  oj  solicitor  of  petitioner.) 

{Add  affidavit  of  verification.) 

Order  admitting  creditor  on  foregoing  petition.(a) 

{Title  of  cause.) 

Upon  reading  and  filing  the  petition  of  ,  duly  verified, 

praying  that  he  may  be  admitted  as  a  party  complainant  in  the 

filing  of  the  master's  report,  a  creditor  under  the  decree  already  made.  Innes 
who  has  neglected  to  come  in  in  time,  v.  Lansing,  7  Paige  584. 
cannot  have  an  ex  parte  order  permit-  (o)  A  defendant  to  a  creditor's  bill, 
ting  him  to  go  before  the  master  and  after  having  been  admitted  as  a  co- 
prove  his  debt;  but  he  must  give  complainant,  may  have  the  conduct 
notice  of  his  application  to  the  solici-  of  the  cause  committed  to  himself  on 
tors  of  the  creditors  who  have  already  the  ground  of  great  delay  on  corn- 
proved  their  claims,  and  to  the  origi-  plainant's  part,  and  on  terms  as  to  in- 
nal  parties  to  the  suit.  Wilder  v.  demnifying  complainant  against  future 
Keeler,  3  Paige  164.  Where  several  costs  in  the  cause.  Thompson  v.  Fis- 
creditors'  bills  are  filed  against  the  ler,  6  Sleio.  Eq.  480. 
same  defendant,  as  soon  as  a  decree  is  In  case  of  creditors'  bills  of  this 
obtained  in  either  suit  for  the  benefit  character,  all  creditors  may  claim  a 
of  all  the  creditors,  the  proceedings  share  in  the  distribution  of  the  assets 
in  all  the  other  suits  may  be  stayed,  at  any  time  before  they  have  been 
if  no  other  relief  can  be  obtained  in  dispensed  by  the  court.  Jones  v. 
such  other  suits  than  could  be  had  Payer  weather,  1  Dick.  Ch.  Rep.  237. 


INSOLVENT   CORPORATIONS. 


529 


above- entitled  suit,  and  it  appearing  that  the  said  petitioner  is  a 
creditor  by  judgment  of  the  said  ,  and  that  he  is  willing 

to  contribute  to  the  expenses  of  this  suit : 

It  is,  on  this,  &c.,  ordered,  that  the  said  be  and  he  is 

hereby  admitted  as  a  party  complainant  in  this  suit. 


PROCEEDINGS  AGAINST  INSOLVENT  CORPORA- 
TIONS. 

Bill  against  ^n  insolvent  corporation  for  injunc- 
tion and  receiver.(a) 

In  Chancery  of  New  Jersey. 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

Complaining,  show  unto  your  Honor  your  orators,  ,  all 

of  the  city  of  ,  in  the  State  of  New  Jersey,  stockholders 

and  creditors  of  the  ,  for  and  on  behalf  of  themselves  and 


(a)  Whenever  any  incorporated 
company  shall  have  become  insolvent, 
or  shall  suspend  its  ordinary  business 
for  want  of  funds  to  carry  on  the 
same,  it  shall  and  may  be  lawful  for 
any  creditor  or  stockholder  of  the  said 
company  to  apply,  by  petition  or  bill 
of  complaint,  to  the  Chancellor,  set- 
ling  forth  the  facts  and  circumstances 
of  the  case,  for  a  writ  of  injunction, 
and  the  appointment  of  a  receiver  or 
receivers,  or  trustees ;  whereupon  the 
Chancellor,  being  satisfied  of  the  suffi- 
ciency of  said  application,  and  also  of 
the  truth  of  the  facts  and  allegations 
contained  in  the  said  petition  or  bill, 
by  affidavit  or  otherwise,  apd  upon 
giving,  when  so  ordered,  such  reason- 
able notice,  to  be  served  or  published 
as  he  in  an  order  to  be  made  for  that 
purpose  shall  direct,  may  proceed  in  a 
summary  way,  to  hear  the  affidavits, 
proofs  and  allegations  which  may  be 


offered  by  or  on  behalf  of  the  parties ; 
and  if  upon  such  inquiry  into  the 
matters  or  cause  of  complaint,  it  shall 
be  made  to  appear  to  him  that  the 
company  has  become  insolvent,  and 
shall  not  be  about  to  resume  its  busi- 
ness in  a  short  time  thereafter  with 
safety  to  the  public  and  advantage  to 
the  stockholders,  it  shall  and  may  be 
lawful  for  him  to  issue  an  injunction 
to  restrain  the  company  and  its  officers 
and  agents  from  exercising  any  of  the 
privileges  or  franchises  granted  by 
the  act  incorporating  the  company, 
and  from  collecting  or  receiving  any 
debts,  or  from  paying  out,  selling, 
assigning  or  transferring  any  of  the 
estate,  moneys,  funds,  lands,  tene- 
ments or  effects  of  the  company,  until 
the  court  shall  otherwise  order.  Rev., 
"Corporations,"  §  70.  The  act  par- 
takes largely  of  the  character  of  a 
bankruj)!    law,    and    it    is   proper   to 


2l 


630 


FORMS   OF   PLEADINGS. 


all  other  creditors  and  stockholders  of  said  company  who  shall 
come  in  and  contribute  to  the  expense  of  this  suit,(a)  that  on  or 
about  the  day  of  ,  eighteen  hundred  and  , 

the  legislature  of  this  state  passed  a  certain  act,  entitled  , 

wherein  and  whereby,  among  other  things,  certain  persons 
therein  named  and  their  associates  were  created  a  body  politic 
and  corporate,  in  fact  and  in  law,  by  the  name  and  style  of  the 

,  for  the  purpose  of  manufacturing  and  selling  , 

and  carrying  on  the  business  incident  thereto,  and  for  such  pur- 
pose the  said  company  was  authorized  to  raise  by  subscription 
a  capital  stock  of  dollars,  to  be  divided  into  shares  of 

dollars  each,  with  the  privilege  of  increasing  the  same 
to  dollars;  and  said  company  was  also  authorized  to  issue 

certificates  of  stock,  and  to  purchase,  use,  hold,  possess  and  enjoy 
such  real  estate  as  should  be  necessary  and  expedient  for  the  uses 
of  such  corporation,  and  to  sell,  mortgage,  lease  or  otherwise  dis- 


apply  the  general  rules  which  govern 
that  system,  where  it  is  in  use.  State 
Bank  v.  Receivers,  <fec.,  2  Gr.  Ch.  266. 
The  object  of  the  seventieth  section 
was  to  prevent  companies  actually  in- 
solvent, or  whose  embarrassments  were 
such  as  must  inevitably  lead  to  in- 
solvency, from  doing  what  is  lawful 
for  an  individual  debtor  to  do — make 
a  preference  in  favor  of  any  creditor. 
Coryell  v.  Bridge  Co.,  1  Stock.  457 ; 
see  Wilkinson  v.  Bauerle,  14  Steiv.  Eq. 
635 ;  Vail  v.  Jameson,  Id.  649.  The 
bill  must  set  forth  the  facts  and  cir- 
cumstances of  the  case.  Affidavits 
and  proofs  may  be  read,  but  for  no 
purpose  except  to  sustain  the  case 
made  by  the  bill  and  by  the  opposite 
party  in  its  disproof  and  denial.  It 
will  not  do  simply  to  charge  that  the 
company  is  insolvent,  and  then  take 
affidavits  to  show  facts  and  circum- 
stances not  alluded  to  in  the  bill  to 
make  out  such  insolvency.  Bawnsley 
V.  Ins.  Co.,  1  Stock.  95,  347;  New- 
foundland Ry.  Construction  Co.  v. 
Shack,  13  Stew.  Eq.  222,     In  judging 


of  the  solvency  or  insolvency  of  a 
company,  its  property  should  be  esti- 
mated at  its  fair  value,  and  not  at  the 
depreciated  price  which  it  might  com- 
mand at  a  forced  sale.  Parsons  v. 
Monroe  Mfg.  Co.,  3  Gr.  Ch.  187.  In 
proceedings  under  this  act  the  solici- 
tor on  record  of  the  complainants  is 
the  common  solicitor  of  all  the  apply- 
ing creditors,  and  regularly  all  orders 
and  proceedings  should  be  in  his 
name.  If  any  one  of  the  creditors 
is  so  situated  as  to  render  it  necessary 
that  he  should  be  represented  sep- 
arately before  the  court,  application 
for  that  purpose  should  be  made. 
Mechanics'  Bank  v.  Bank  of  N.  B.,  2 
Gr.  Ch.  438. 

(a)  Whenever  there  are  creditors 
or  other  persons  having  demands 
(cognizable  in  equity  and  of  equal 
standing)  upon  a  common  fund  or 
estate,  and  out  of  which  they  claim  to 
be  paid,  the  proper  course  for  them  is 
to  unite  in  one  bill,  or  for  one  or 
more  to  file  a  bill  in  behalf  of  all. 
See  Lines  v.  Lansing,  7  Paige  583. 


INSOLVENT   CORPORATIONS.  531 

pose  of  the  same  at  pleasure,  to  borrow  money  and  issue  bonds 
therefor,  and  were  to  possess  the  powers  and  be  subject  to  the 
general  restrictions  set  forth  in  an  act  entitled  ,  so  far  as 

the  same  were  applicable  thereto. 

And  your  orators  further  show,  that  after  the  passage  of  the 
said  act,  books  of  subscription  to  the  capital  stock  of  the  said 
company  were  duly  opened,  and  the  whole  of  said  capital  stock 
was  subscribed  ;  and  that  your  orator,  ,  is  the  owner  and 

possessor  of  shares  of  the  said  capital  stock,  of  the  par 

value  of  dollars;  and  that  the  said  company  is  indebted 

to  your  orator,  ,  for  money  loaned  and  for  endorsements, 

in  the  sum  of  dollars ;  and  that  your  orators,  and 

,  are  the  owners  and  possessors  of  shares  of  said 

capital  stock,  and  that  the  said  company  is  also  indebted  to 
them  in  the  sum  of  dollars,  being  the  amount  of  money 

loaned  to  said  company  by  them,  and  in  the  further  sum  of 
dollars,  being  the  amount  due  to  them  from  said  com- 
pany for  premiums  for  insurance  obtained  by  them  for  said 
company  upon  its  works. 

And   your  orators  further  show,  that  after  its  organization 
the  said  company  purchased  certain  real  estate  in  the  county  of 
,  in  this  state,  and  erected  thereon  buildings  and  put 
therein  machinery  suitable  for  the  manufacture  of  ;  and 

has  continued  to  carry  on  the  manufacture  of  until  the 

day  of  ,  eighteen  hundred  and  ,  when 

said  company  stopped  business. 

And  your  orators  further  show,  that  on  the  day  of 

,  eighteen  hundred  and  ,  certain  commercial  paper, 

made  by  the  said  company  for  the  sum  of  dollars,  or  there- 

abouts, was  protested  for  non-payment;  and  that  on  the 
day  of  ,  in  the  same  year,  the  holders  and  owners  of  said 

paper  commenced  an  action  at  law  against  the  said  company  in 
the  Supreme  Court  of  this  state  to  enforce  the  collection  thereof. 

And  your  orators  further  show,  that  said  paper  was  not  met 
or  paid  by  said  company,  because  it  had  no  funds  wherewith 
to  pay  it. 

And  your  orators  further  show,  that  on  the  day  of 

,  eighteen  hundred  and  ,  other  commercial  paper 

of  the  said  company,  in  all  amounting  to  the  sum  of 


632  FORMS   OF   PLEADINGS. 

dollars,  fell  due  and  would  have  been  protested  for  non-payment 
had  not  your  orator,  ,  who  is  endorser  upon  it,  provided 

for  the  payment  thereof  out  of  his  individual  funds. 

And  your  orators  further  show,  that  they  are  informed  and 
believe  it  to  be  true  that  the  liabilities  of  the  said  company 
amount  to  over  dollars,  of  which  amount  dollars 

are  represented  by  promissory  notes  made  by  the  said  company, 
some  of  which  are  past  due  and  others  falling  due  daily,  and 
which  said  company  has  no  funds  to  meet ;  that  the  total 
amount  of  all  its  resources,  inventoried  at  full  value,  over  and 
above  their  real  estate,  was,  on  the  day  of  ,  eighteen 

hundred  and  ,  less  than  dollars,  of  which 

dollars,  or  thereabouts,  was  in  stock  and  materials  used  in  the 
business  of  the  company,  and  which  has  since  been  largely 
decreased. 

And  your  orators  further  show,  that  the  real  estate  of  said 
company  would  not  produce,  in  the  judgment  of  those  who  are 
acquainted  with  the  value  of  real  estate  in  the  locality  where  the 
same  is  situated,  the  sum  of  dollars,  at  private  sale;  and 

that  it  is  encumbered  by  mortgages  to  the  amount  of 
dollars. 

And  your  orators  further  show  and  charge  the  fact  to  be,  that 
the  said  company  is  insolvent;  and  that  it  has  not  the  funds 
to  carry  on  the  ordinary  business  of  said  organization ;  and  that 
it  has  been  carrying  on  said  business  at  great  pecuniary  loss 
to  the  stockholders  of  said  company;  and  that  owing  to  the  great 
depression  in  business  and  general  uncertainty  as  to  the  future, 
the  business  of  said  corporation  cannot  be  conducted  so  as  to 
enable  the  said  corporation  to  pay  its  just  debts  or  carry  on  its 
operations  with  profit  to  its  stockholders ;  and  that  the  further 
prosecution  by  the  said  company  of  its  said  business  would 
necessarily  tend  to  the  sacrifice,  injury  and  depreciation  of  the 
rights  of  its  stockholders  and  creditors. 

In  consideration  whereof,  and  forasmuch  as  your  orators  are 
without  adequate  remedy  without  the  assistance  of  this  honor- 
able court,  where  matters  of  this  nature  are  particularly  cogniz- 
able and  relievable: 

To  the  end,  therefore,  that  the  said  company  may  full,  true 
and  perfect  answer  make  to  all  and  singular  the  matters  and 


INSOLVENT   CORPORATIONS.  533 

things  hereinbefore  stated ;  and  that  it  may  set  forth  and  discover 
the  goods  and  chattels,  rights  and  credits,  moneys  and  eifects, 
and  real  estate  of  every  kind  and  description  belonging  to  said 
corporation;  and  that  your  orators  and  other  creditors  and  stock- 
holders of  the  said  company  may  be  paid  what  is  justly  due 
them;  and  that  the  said  company  may  be  enjoined  from  exercis- 
ing any  of  its  franchises  and  from  receiving  any  debts  due  to  it, 
and  from  paying  and  transferring  any  of  its  moneys  or  effects, 
and  from  continuing  its  said  business;  and  that  it  may  be  decreed 
to  be  insolvent;  and  that  a  receiver  may  be  appointed,  according 
to  the  form  of  the  statute  in  such  case  made  and  provided ;  and 
that  your  orators  may  have  such  further  or  other  relief  in  the 
premises  as  the  nature  of  the  case  may  require,  and  as  may  be 
agreeable  to  equity  and  good  conscience: 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
unto  your  orators  the  state's  writ  of  injunction,  issuing  out  of 
and  under  the  seal  of  this  honorable  court,  directed  to  the  said 
the  ,  its   officers,  servants   and   agents,  enjoining   and 

restraining  them  and  each  of  them  from  exercising  any  of  the 
privileges  or  franchises  granted  by  the  act  incorporating  said 
company,  and  from  collecting  or  receiving  any  debts  due  to  said 
corporation,  and  from  paying  out,  selling,  assigning  or  trans- 
ferring any  of  the  estate,  money,  funds,  lands,  tenements  or 
effects  of  said  corporation ;  and  also  the  state's  writ  of  subpoena, 
likewise  issuing  out  of  and  under  the  seal  of  this  honorable 
court,  to  be  directed  to  the  said  the  (a),  therein  and  thereby 

commanding  the  said  corporation  to  appear  before  your  Honor, 
according  to  law  and  the  course  of  this  court,  at  a  certain  day 
and  under  a  certain  penalty  therein  to  be  expressed,  then  and 
there  to  answer  the  premises,  and  to  stand  to,  abide  and  per- 
form such  decree  as  to  your  Honor  shall  seem  meet. 

And  your  orators  will  ever  pray,  &c. 

{Signature  of  solicitor  and  counsel.) 

{Add  verification  of  necessary  facts.) 

(a)  When  a  change  occurs  in  the  answer  must  be  filed  by  the  persons 

officers  of  a  corporation  between  the  who   are  officers  at   the  time  of  the 

time  it  is  brought  into  court  and  the  filing,     il/ec/i.   Nat.   Bank   v.   Burnet 

time   when   its   answer   is    filed,   the  Mj]/.  Co.,  5  Skw.  Eq.  236. 


534  FORMS   OF   PLEADINGS. 

Order  to  show  cause  why  an  injunction  should 
not  issue  and  receiver  be  appointed  with  ad  interim 

injunction. 

(Title  of  cause.) 

This  matter  coming  on  to  be  heard,  &c.,  and  the  court  being 
satisfied  of  the  sufficiency  of  the  application  made  in  this  cause, 
and  of  the  truth  of  the  facts  and  allegations  contained  in  the 
bill  exhibited  herein :  It  is,  on  this,  &o.,  ordered,  that  the  de- 
fendants, the  said  ,  show  cause  before  the  Chancellor,  at  the 
State-house,  in  Trenton,  (or  "at  the  chancery  chambers  in  the  city 
of  ,")  on  ,  the  day  of  next,  at 
o'clock  in  the  noon,  why  an  injunction  should  not  issue, 
pursuant  to  the  prayer  of  said  bill,  and  a  receiver  be  appointed 
to  take  charge  of  all  the  property  and  estate,  books  and  papers 
of  said  defendants,  pursuant  to  the  statute  in  such  case  made  and 
provided. 

And  it  is  also  ordered,  that  until  this  order  shall  be  made 
absolute  or  be  discharged,  the  said  defendants,  their  officers, 
servants  and  agents,  absolutely  desist  and  refrain  from  contract- 
ing any  debt  or  debts;  and  also  from  collecting  or  receiving  any 
money  owing  to  said  defendants;  and  also  from  paying  out  any 
money,  or  selling,  assigning  or  transferring  any  of  their  prop- 
erty, estate  or  effects  of  any  kicd. 

And  it  is  also  ordered,  that  a  copy  of  this  order,  "  together 
with  a  copy  of  said  bill  and  the  affidavits  thereto  annexed,"  be 
served,  within  days  from  the  date  hereof  personally  on 

the  president  of  said  defendant  corporation,  if  he  can  be  found 
in  this  state,  or  if  he  cannot,  then  on  any  one  of  the  directors  of 
said  corporation  resident  in  this  state. 

Notice  of  application  for  receiver. (a) 

{Title  of  cause.) 
Take  notice,  that  an  application  will  be  made  to  the  Chan- 
cellor, on  ,  the  day  of  next,  at  o'clock 
A.  M.,  at  the  State-house  in  Trenton,  (cr,  "at  the  chancery  cham- 

(a)  When  the  application  for  a  day,  and  must  be  served  as  provided 
•receiver  is  made  upon  notice,  the  in  the  standing  rules  of  the  court, 
notice  must  be  for  a  regular  motion-      See  page  273,  ante. 


INSOLVENT   COEPORATIONS. 


535 


bers  in  ,")  for  the  appointment  of  a  receiver  to  take  charge 

of  the  effects  and  property  of  the  {naming  corporation,)  and  for 
tin  injunction,  &c. 

Your  obedient  servant, 

{Solicitor  of  complainants.) 
Dated,  &c. 

Affidavit    of    service    of    foregoing    notice.     New 

Jersey,  ss. —  ,  of  full  age,  being  duly  sworn,  on  his  oath 

saith — that  he  served  a  notice,  of  which  the  foregoing  is  a  true 
copy,  upon  ,  president  of  {naming  corporation,)  personally, 

on  the  day  of 

Sworn,  &c. 

Order    appointing    receiver    on    bill    against    an 
insolvent  corporation.(a) 

{Title  of  cause.) 
Upon  opening  the  matter  this  day  to  the  court,  by  ,  of 

counsel  with  the  complainants,  [in  the  presence  of  ,  of 

counsel  with  the  defendants,]  &c.,  and  due  proof  being  made 


(a)  It  shall  and  may  be  lawful  for 
the  Court  of  Chancery,  if  the  circum- 
stances of  the  case  and  the  ends  of 
justice  require  it,  at  the  time  of  order- 
ing the  said  injunction,  or  at  any 
other  time  afterwards  during  the  con- 
tinuance of  the  said  injunction,  to 
appoint  a  receiver  or  receivers,  or 
trustee  or  trustees,  with  full  power 
and  authority  to  demand,  sue  for, 
collect,  receive  and  take  into  their 
possession  all  the  goods  and  chattels, 
rights  and  credits,  moneys  and  effects, 
lands  and  tenements,  books,  papers, 
choses  in  action,  bills,  notes  and  prop- 
erty of  every  description  belonging  to 
the  ^aid  company  at  the  time  of  their 
insolvency  or  suspension  of  business 
as  aforesaid ;  and  to  sell,  convey  or 
assign  all  the  said  real  or  personal 
estate ;  and  to  pay  into  the  Court  of 
Chancery  all  the  moneys  and  securi- 
ties   for    money   arising   from    such 


sales,  or  which  the  said  receiver  or 
receivers,  or  trustee  or  trustees,*  shall 
collect  or  receive  by  virtue  of  the 
authority  vested  in  them,  to  be  dis- 
posed of  by  the  said  receiver  or 
receivers,  or  trustee  or  trustees,  from 
time  to  time,  under  the  order  of  the 
said  court,  among  the  creditors  of  the 
said  company,  first  making  to  the 
receiver  or  receivers,  or  trustee  or 
trustees,  such  reasonable  compensation 
as  the  Chancellor  may  deem  just  and 
proper,  and  also  deducting  the  costs 
of  the  proceedings  in  the  said  court. 
Mev.,  "Corporations,"  §  72.  Before  the 
said  receiver  or  receivers,  or  trustee 
or  trustees,  shall  be  capable  of  acting, 
he  or  they  shall  comply  with  such 
terms  as  the  Chancellor  in  his  order 
appointing  him  or  them  may  pre- 
scribe, and  he  or  they  shall  respec- 
tively take  and  subscribe  the  follow- 
ing oath  or  affirmation,  before  one  of 


536  FORMS   OF   PLEADINGS. 

of  the  service  *  of  notice  of  this  application  on  the  defendants, 
{or  after  *,  "  of  the  order  to  show  cause  heretofore  granted 
herein/')  and  it  appearing  to  the  court  that  the  said  defendants 
have  suspended  their  ordinary  business,  and  are  insolvent :  It  is, 
on  this  day  of  ,  eighteen  hundred  and  ,  ordered, 

that  "the  said  order  to  show  cause  be  made  absolute,"  and  that 
,  of  ,  be  and  he  is  hereby  appointed  receiver,  with 

full  power  to  demand,  sue  for,  collect  and  receive  and  take  into 
his  possession  all  the  goods  and  chattels,  rights  and  credits, 
moneys  and  effects,  lands  and  tenements,  books,  papers,  choses 
in  action,  bills,  notes  and  property  of  any  and  every  description, 
belonging  to  the  said  the  {corporation^  at  the  time  of  their  sus- 
pension of  business,  and  to  sell,  convey  or  assign  all  the  said 
real  or  personal  estate,  and  to  pay  into  the  Court  of  Chancery 
all  the  moneys  and  securities  for  money  arising  from  such  sales, 
or  which  he  shall  collect  or  receive  by  virtue  of  his  said  office, 
and  to  do  and  perform  all  the  duties  imposed  upon  him  and 
required  by  law,  and  especially  by  an  act  entitled  "An  act  con- 
cerning corporations,"  approved  April  seventh,  eighteen  hun- 
dred and  seventy-five.  And  it  is  further  ordered,  that  said  , 
before  entering  upon  his  duties,  take  the  oath  prescribed  by  law, 
and  give  a  bond  to  the  Chancellor  of  the  State  of  New  Jersey 

the  masters  of  the  Court  of  Chancery,  and  complete  inventory  of  all  the 
or  before  the  Chancellor:  "I,  ,  estate,  property  and  effects  of  the  said 
do  swear  {or  affirm)  that  I  will  faith-  company,  their  nature  and  probable 
fully,  honestly  and  impartially  exe-  value,  and  an  account  of  all  the  debts 
cute  the  powers  and  trusts  reposed  in  due  from  the  said  company  and  of 
me,  as  receiver  or  trustee  (a-y  the  case  the  debts  due  to  it,  as  near  as  the  said 
may  he,)  for  the  creditors  and  stock-  receiver  or  receivers,  or  trustee  or 
holders  of  the  ,  and  that  with-  trustees,  can  ascertain  the  same  at 
out  favor  or  affection ; "  which  oath  that  time ;  and  also  to  make  a  report 
or  affirmation  shall  be  filed  in  the  of  their  proceedings  to  the  said  court 
office  of  the  clerk  in  chancery,  within  every  six  months  thereafter,  until  the 
ten  days  after  the  taking  thereof.  said  trust  shall  be  completed.  Id.,  § 
Id.,  §  73.  It  shall  be  the  duty  of  the  76.  In  proceedings  against  an  in- 
receiver  or  receivers,  or  trustee  or  solvent  corporation,  a  person  con- 
trustees,  so  to  be  appointed,  as  soon  as  nected  with  the  management  will  not 
they  conveniently  can,  after  taking  be  appointed  receiver.  Middlesex 
possession  of  the  estate  and  effects  of  Freeholders  v.  State  Bank,  1  Steu:  Eq. 
the  company  for  which  he  or  they  166 ;  McOullough  v.  Merchants^  Loan 
shall  be  appointed  as  aforesaid,  to  lay  Co.,  2  Stew.  Eq.  217. 
before  the  Court  of  Chancery  a  full 


INSOLVENT   COEPORATIONS.  537 

in  the  sum  of  dollars,  conditioned  for  the  faithful  per- 

formance of  his  duties,  to  be  approved  as  to  the  form  and  security 
thereof  by  ,  one  of  the  special  masters  of  this  court. 

Bond  of  receiver.  Know  all  men  by  these  presents,  that 
we,  (prineipal,)  and  and  (sureties,)  of,  &c., 

are  held  and  firmly  bound  unto  the  Chancellor  of  the  State  of 
New  Jersey  in  the  sum  of  dollars,  lawful  money  of  the 

United  States  of  America,  to  be  paid  to  the  said  the  Chancellor 
of  the  State  of  New  Jersey,  and  his  successors  in  office.  To 
which  payment  well  and  truly  to  be  made,  we  bind  ourselves, 
our  and  each  of  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents.  Sealed  with  our  seals. 
Dated  the  day  of  ,  &c. 

Whereas,  by  an  order  of  the  Court  of  Chancery  of  the  State 

of  New  Jersey,  made  in  a  cause  pending  in  said  court,  wherein 

are   complainants,  and  are   defendants,  it   was 

ordered  that  be  appointed  a  receiver  for  the  creditors  and 

stockholders  of  said  company  : 

Now,  therefore,  the  condition  of  the  above  obligation  is  such 
that  if  the  said  shall  and  do,  as  required  by  law  and 

the  rules  and  practice  of  said  court,  duly  file  an  inventory, 
and  half  yearly  or  oftener,  if  required,  duly  account  for  what 
he  shall  receive  or  have  in  charge  as  such  receiver;  and  pay 
and  apply  what  he  shall  so  receive  or  have  in  charge,  as  he  may 
from  time  to  time  be  directed  by  said  court,  and  obey  such 
orders  as  said  court  may  from  time  to  time  make  in  relation  to 
said  trust,  and  in  all  thiogs  well  and  truly  fulfill  and  discharge 
the  duties  of  his  said  ofiice  of  receiver,  then  the  above  obligation 
to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

Order  for  injunction  in  suit  against  corporation. 

[Title  of  cause.) 
Upon  opening  the  matter  this  day  to  the  court,  by  ,  of 

counsel  with  the  complainants,  and  upon  reading  the  bill  of 
complaint  in  this  cause,  and  the  affidavits  thereto  annexed,  and 
on  duly  considering  the  same  :  It  is,  on  this,  &c.,  ordered  that  an 
injunction  issue  against  the  said  defendants,  according  to  the 
prayer  of  the  said  bill. 


538  FORMS   OF   PLEADINGS. 

Affidavit  to  be  annexed  to  inventory. 

( Venue.) 


,  being  duly  sworn  (or  affirmed,)  [on  his  oath]  saith— 

that  he  is  the  receiver  in  the  above- entitled  cause  {or  matter,) 

and  the  person  who  subscribed  the  foregoing  inventory,  and  that 

he  verily  believes  the  same  to  be  a  true  and  correct  statement  of 

all  the  estate,  property,  effects  and  liabilities  of  said  (corporation,) 

{or  as  the  case  may  be.) 

{Signature.) 
{Jurat.) 

Prayer  for  receiver  over  partnership.  That  a  proper 
person  may  be  appointed  receiver  to  collect  and  get  in  all  the 
outstanding  debts  and  moneys  due  to  or  on  account  of  the  said 
partnership  business,  and  also  to  take  possession  of  the  stock  in 
trade,  effects  and  property  of  every  nature  and  kind  of  or  be- 
longing to  the  said  partnership;  that  the  defendant  may  be 
ordered  to  deliver  up  to  such  person  all  the  stock  in  trade, 
effects  and  property  of  every  nature  and  kind  of  or  belonging  to 
said  partnership  in  his  possession  or  under  his  control,  and  also 
all  money,  notes,  drafts,  bills  of  exchange,  checks  or  other  evi- 
dences of  indebtedness  due  and  owing  to  said  partnership,  to- 
gether with  all  books  of  account,  accounts,  receipts,  vouchers 
and  papers  of  every  nature  belonging  or  pertaining  to  said  part- 
nership ;  and  that  the  said  stock  in  trade,  effects  and  property  of 
or  belonging  to  the  said  partnership  may  be  sold  and  converted 
into  money  by  said  receiver,  by  and  under  the  direction  of  this 
€Ourt,  and  that  such  other  or  further  relief  may  be  had  in  the 
premises  as  equity  may  require,  and  as  the  court  may  deem  just. 

Order  appointing  receiver  over  partnership. 

{Title  of  cause  and  introduction.) 
After  formal  commencement,  it  is  (date)  ordered,  that  A.  B., 
of  ,  be  and  he  is  hereby  appointed  receiver  to  collect,  get 

in  and  receive  the  outstanding  debts  and  moneys  due  to  or  on 
account  of  said  partnership  business  of  ,  at  ,  and 

-also  to  receive  and  take  possession  of  all  the  stock  in  trade, 


INSOLVENT   CORPORATIONS.  539 

effects  and  property  of  every  nature  and  kind  of  or  belonging  to 
the  said  partnership,  upon  his  filing  a  bond  with  the  clerk  of 
this  court  in  the  penal  sum  of  dollars,  with  sufficient 

surety,  to  be  approved  by  ,  one  of  the  special  masters  of 

this  court,  conditioned  for  the  faithful  performance  of  his  duties 
as  such  receiver ;  and  let  plaintiff  and  defendant  deliver  over  to 
such  receiver  all  the  stock  in  trade,  effects  and  property  of  every 
nature  and  kind  of  or  belonging  to  said  partnership,  in  their 
possession  or  subject  to  their  control,  and  also  all  moneys,  notes, 
drafts,  bills  of  exchange,  checks,  or  other  evidences  of  indebted- 
ness due  to  said  partnership,  together  with  all  books  of  account, 
accounts,  receipts,  vouchers  and  papers  of  every  nature  belong- 
ing or  appertaining  to  said  partnership  business.  {Add  such 
directions  as  are  desired  as  to  the  management  and  winding  up  oj 
the  business,  the  sale  of  the  stock  in  trade,  effects  and  good- will  of 
the  partnership,  and  the  payment  of  debts  by  the  receiver.) 

And  it  is  further  ordered,  that  said  receiver,  from  time  to 
time,  make  report  to  the  court  of  his  doings  in  this  behalf;  and 
that  either  of  the  parties  to  said  cause,  or  said  receiver,  shall  be 
at  liberty  to  apply  to  this  court  from  time  to  time  for  such 
further  order  or  directions  as  may  be  necessary. 

Prayer  for  receiver  of  real  and  personal  estate  of 
testator,  in  behalf  of  heir-at-law,  pending  litigation 
as  to  his  title. 

The  complainant  therefore  prays — 

1 .  That  a  proper  person  may  be  appointed  to  receive  the  rents 
and  profits  ^f  the  real  estate  of  the  said  {testator,)  hereinbefore 
described,  until  such  time  as  the  plaintiff's  title  shall  be  deter- 
mined in  the  said  action ;  and  also  to  receive  the  rents  and  profits 
of  the  leasehold  estates  of  the  said  {testator,)  and  to  let  and  man- 
age the  same,  and  to  receive,  collect  and  get  in  the  personal  estate 
of  the  said  {testator^  pending  the  aforesaid  action. 

2.  That  all  deeds,  books  and  documents  now  in  possession  of 
the  defendants,  and  belonging  or  relating  to  the  real  and  personal 
estate  of  the  said  {testator,)  may  be  delivered  over  to  the  receiver 
so  appointed,  or  that  the  same  may  be  deposited  in  this  court,  for 


540  FORMS   OF   PLEADINGS. 

the  purpose  of  enabling  such  person  or  persons  to  refer  to  and 
use  the  same,  as  may  be  necessary. 

3.  That  for  the  purpose  aforesaid,  all  usual  and  necessary 
directions  may  be  given  and  inquiries  directed. 

Notice  to  tenant  to  attorn  to  receiver. 

{Title  and  referenee  to  the  record.) 
I,  A.  B.,  of  {residence,)  the  receiver  appointed  in  this  cause 
•of  the  rents  and  profits  of  the  real  estate  of  C.  D.,  the  testator 
in  the  bill  in  this  cause  named  {or  as  the  case  may  be,)  hereby 
give  you  notice  and  require  you  to  attorn  and  become  tenant  to 
me  for  {describe  the  property,)  now  occupied  by  you,  and  for  such 
other  part  or  parts  of  the  said  real  estate  as  is  or  are  in  your 
occupation ;  and  to  pay  to  me  your  rent  in  arrear,  and  growing 
rent,  for  the  said  premises. 

Dated  this  day  of  ,  eighteen  hundred  and 

{Signature  of  receiver.) 
To  C.  D.,  of  {residence.) 

Attornment  by  tenant  to  receiver. 

( Title  and  reference  to  the  record.) 
I,  C.  D.,  of  {residence,)  attorn  and  become  tenant  to  A.  B., 
the  receiver  appointed  in  this  cause,  for  {describe  the  property^ 
as  the  same  are  now  in  my  occupation,  to  hold  the  same  at  and 
under  the  same  rent,  and  subject  to  the  same  covenants  and  con- 
ditions as  I  now  hold  the  same.  And  I  have  this  day  paid  to 
the  said  A.  B.  the  sum  of  dollars,  for  and  on  account  and 

in  part  payment  of  the  said  rent. 

Dated  this  day  of  ,  eighteen  hundred  and 

Witness —  {Signature  of  tenant.) 

E.  F.,  of  {residence.) 

Receiver's  affidavit  to  his  account. 

{Title  of  cause.) 
State  of  ,    1 

county  of  ,    J 

I,  A.  B.,  the  receiver  heretofore  appointed  in  this  cause,  being 
duly  sworn,  say — that  the  foregoing  account,  containing 


INSOLVENT   CORPORA.TIONS.  541 

pages,  and  purporting  to  be  my  account  of  all  the  rents  and 
profits  of  the  real  estate,  and  of  outstanding  personal  estate,  of 
{or  as  the  case  may  be,)  in  this  cause,  from  the  day  of 

,  eighteen  hundred  and  ,  to  the  day  of 

,  eighteen  hundred  and  ,  both  inclusive,  contains 

a  true  account  of  all  and  every  sum  and  sums  of  money  received 
by  me,  or  by  any  person  or  persons  by  my  order,  or  to  my 
knowledge  or  belief,  for  my  use,  on  account  or  in  respect  of  the 
said  rents  and  profits  accrued  due  on  or  before  the  day  of 

,  eighteen  hundred  and  ,  or  on  account  or  in 

respect  of  the  said  personal  estate,  other  than  and  except  what 
is  included  as  received  in  my  former  account  (or,  "  accounts  ") 
sworn  to  by  me.  And  I  do  further  state,  that  the  several  sums 
of  money  mentioned  in  the  foregoing  account  as  having  been 
paid  or  allowed  by  me,  were  actually  and  truly  so  paid  and 
allowed  for  the  several  purposes  respectively  in  said  account 
mentioned;  and  that  said  account  is  just  and  true  in  all  and 
every  the  items  and  particulars  therein  contained,  according  to 

the  best  of  my  knowledge  and  belief. 

{Signature.) 
(Jurat.) 

Order  appointing  receiver  over  railv;ray  on  bill  for 
foreclosure  by  mortgage  bondholder. 

{Title  of  cause.) 
CommenGement  in  usual  form,  then,  and  now,  on  this  day,  the 
court  being  sufficiently  advised  upon  the  motion  of  the  com- 
plainant for  the  appointment  of  a  receiver  heretofore  submitted 
to  the  court  upon  the  bill,  exhibits,  amended  bill,  supplemental 
bill,  exhibits  thereto  and  affidavits,  filed  both  by  the  said  com- 
plainant and  the  said  defendant,  and  the  court  having  heard 
argument  thereon  :  It  is  {date,)  ordered  and  decreed,  that 
be  appointed,  upon  giving  security  in  the  sum  of  dol- 

lars, receiver  herein,  to  take  possession  of  the  money  and  assets, 
real  and  personal,  road-bed,  road,  iron,  ties,  lands,  right  of  way, 
mines,  rolling  stock,  leases,  franchises,  and  all  other  rights  and 
property  whatsoever,  of  said  railroad  company,  wherever 

the  same  may  be  found,  with  power  to  manage,  control  and  exer- 


542  FOEMS   OF   PLEADINGS. 

cise  all  the  franchises  whatsoever,  of  said  railroad  company,  and, 
if  need  be,  under  the  direction  of  the  court,  to  sell,  transfer  and 
convey  the  whole  or  any  part  of  the  property  of  said  railroad 
company,,  and  with  power  to  prosecute,  defend  and  continue  all 
suits  brought  by  or  against  the  said  railroad  company,  whether 
heretofore  or  hereafter  commenced,  and  whether  in  the  name  of 
said  railroad  company  or  otherwise ;  to  defend  all  suits  brought 
against  him  as  such  receiver,  or  aifecting  his  receivership,  and  to 
bring  such  suits  in  the  name  of  said  railroad  company  as  he  may 
be  advised  by  counsel  to  be  necessary  and  proper  in  the  discharge 
of  the  duties  of  his  office,  and  for  acquiring,  securing  and  pro- 
tecting the  assets,  franchises,  property  and  rights  of  the  said 
railroad  company. 

And  it  is  further  ordered,  that  the  said  defendants,  the 
railroad  company,  ,  ,  or  whoever  may  have  posses- 

sion thereof,  assign,  transfer  and  deliver  over  to  such  receiver 
on  oath,  under  direction  of  ,  a  master  of  this  court,  all 

the  property,  real  and  personal,  wheresoever  found,  and  all  con- 
tracts for  the  purchase  of  land  and  all  other  equitable  interests, 
things  in  action,  and  other  effects  which  belong  to,  or  were  held 
in  trust  for,  said  defendants'  railroad  company,  or  in  which  it 
had  any  beneficial  interest,  in  the  same  condition  they  were  at 
the  time  of  exhibiting  the  said  bill  of  complaint  in  this  cause, 
except  so  far  as  necessarily  changed  in  the  proper  management 
of  said  road,  or  in  which  it  now  has  any  such  interest ;  and  that 
said  defendants  deliver  over,  in  like  manner,  all  books,  vouchers 
and  other  evidence  relating  thereto. 

And  it  is  further  ordered,  that  the  said  receiver  have  full 
power  and  authority  to  inquire  after,  receive  and  take  possession 
of  such  property,  debts,  equitable  interests,  things  in  action  and 
other  effects,  and  for  that  purpose  to  examine  said  defendants, 
their  officers,  and  such  other  persons  as  he  may  deem  proper,  on 
oath,  before  the  said  master,  from  time  to  time,  as  he  may  deem 
necessary. 

And  it  is  further  ordered,  that  the  said  is  hereby  di- 

rected and  required  as  such  receiver  to  keep  a  full  and  accurate 
account  of  all  his  acts  and  doings  as  such  receiver,  and  to  report 
the  same  to  this  court  from  time  to  time,  as  he  may  be  hereafter 


INSOLVENT   COEPOEATIONS.  54S 

directed  by  the  order  of  this  court,  and  in  the  meantime,  and 
until  another  order  of  this  court,  to  run,  operate  and  manage  the 
railroad  of  the  said  defendant  railroad  company,  and  to  manage 
and  control  all  the  said  property  and  aifairs  of  said  defendant 
railroad  company ;  and  the  said  receiver  is  hereby  empowered 
and  authorized  to  employ  such  counsel  and  attorneys  as  he  may 
deem  necessary  to  manage  in  his  behalf  such  suits  and  other 
affairs  as  have  arisen  or  may  arise,  and  to  advise  such  receiver  in 
relation  to  the  performance  of  his  duties  therein. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  said 
receiver  may  use  the  moneys  of  the  said  defendant  railroad 
company  for  any  and  all  the  purposes  stated  in  the  foregoing 
provisions. 

Order  limiting  creditors. 

{Title  of  cause.) 
Upon  opening  this  matter  to  the  court  by  ,  of  counsel 

with  the  complainants  in  the  above  cause,  it  is,  on  this,  &c., 
ordered  that  the  creditors  of  the  said  do  present  to  the 

receiver  appointed  in  this  cause,  and  prove  before  him,  under 
oath  or  affirmation,  or  otherwise,  as  the  said  receiver  shall 
direct,  to  the  satisfaction  of  the  said  receiver,  their  several  claims 
and  demands  against  the  said  corporation,  within  months 

from  the  date  of  this  order,  or  that  they  be  excluded  from  the 
benefit  of  such  dividends  as  may  thereafter  he  made  and  de- 
clared by  this  court  upon  the  proceeds  of  the  effects  of  said  cor- 
poration ;  and  for  the  better  ascertaining  the  creditors  of  said 
corporation,  and  what  is  due  to  them,  respectively,  the  said 
creditors  are  to  be  examined  as  the  said  receiver  shall  direct  or 
may  deem  necessary  and  expedient,  and  produce  books  and 
papers  before  him,  on  oath  or  affirmation,  (which  oath  or  affir- 
mation the  said  receiver  is  hereby  authorized  to  administer,)  as 
well  as  to  examine,  under  oath  or  affirmation,  all  such  witnesses 
as  shall  be  produced  before  him  touching  the  demands  of  said 
creditors.  And  it  is  further  ordered  that  the  said  receiver  do 
cause  proper  advertisements  to  be  published  in  at  least  two 
newspapers  published  in  this  state,  and  such  newspapers  pub- 


544  FORMS   OF   PLEADINGS. 

lished  in  the  cities  of  New  York  and  Philadelphia  as  he  shall 
deem  proper  and  advisable,  {or  such  other  direction  as  the  Chan- 
cellor shall  deem  advisable,)  for  the  creditors  of  said  corporation 
to  come  in  before  him  and  prove  their  claims  and  demands,  as 
in  this  order  is  directed  ;  and  that  such  publication  be  made 
within  days  from  the  date  hereof,  and  be  continued  in 

such  papers  as  aforesaid  for  the  space  of  months.     And  it 

is  further  ordered,  that  said  receiver  also  mail  a  notice  of  this 
order  to  the  post-office  address  of  each  of  the  said  creditors,  if 
the  same  can  be  ascertained. 

Order  to  show  cause  why  a  claim  should  not  be 
admitted.(a) 

{7Me  of  cause.) 

Upon  reading  and  filing  the  petition  of  and  , 

alleging  that  they  have  a  claim  of  dollars,  which  they 

have  omitted   to  present  to  the  receiver  within  the  time  pre- 
scribed by  the  order  of  this  court  made  in  this  cause  on  the 
day  of  ,  eighteen  hundred  and  ,  in  conse- 

quence of  having  failed  to  receive  information  of  such  order  in 
time  to  present  such  claim  (or  as  the  case  may  be :) 

It  is,  on  this  day  of  ,  eighteen  hundred  and  , 

ordered,  that  the  said  ,  receiver,  show  cause  on  the 

day  of  ,  instant,  at  o'clock  in  the  noon,  at 

the  State-house,  in  Trenton,  (or,  "  at  the  chancery  chambers,  in 
the  city  of  ,")  why  the  said  petitioners  should  not  be 

allowed  to  present  their  claim  to  the  said  receiver,  and  receive 
their  proper  dividend  thereon;  and  that  in  the  meantime  the 
said  receiver  retain  in  his  hands  enough  money  of  the  estate  of 
said  defendant  to  pay  to  the  said  petitioners  a  dividend  equal 
to  that  paid  or  to  be  paid  to  the  creditors  who  have  duly  pre- 
sented their  claims. 

(a)  It  is  usual  in  practice,  on  an  expired,  to  order  that  the  time  for  all 

application  of  a  creditor  for  leave  to  creditors    generally  to  come  in    and 

present  his  claim  to  the  receiver,  after  prove  their  claims  be  enlarged, 
the  time  limited  for  that  purpose  has 


INSOLVENT   COEPOEATIONS.  545 

Order  absolute  admitting  claim  of  creditor,  (a) 

{Title  of  cause.) 
It  appearing  to  the  court  that  the  order  made  on  the 
day  of  ,  instant,  that  the  receiver  in  this  suit  show  cause, 

on,  &c.,  why  and  should  not  be  allowed  to  present 

their  claim  to  the  said  receiver,  has  been  duly  served  upon  the 
said  receiver,  and  no  cause  being  shown  or  appearing  to  the  con- 
trary :  It  is,  on  this,  &c.,  ordered  that  the  said  order  to  show 
cause  be  made  absolute,  and  that  and  be  allowed 

to  present  their  claim  mentioned  in  their  petition,  to  the  receiver, 
notwithstanding  the  same  was  not  presented  within  the  time 
limited  in  the  order  of  this  court  made  on  the  day  of 

last ;  and  that  such  claim  be  disposed  of  by  said  receiver 
in  the  same  manner  as  if  it  had  been  presented  within  the  time 
limited  by  said  order. 

Order   confirming  receiver's    sale    of  property    of 
insolvent  corporation. 

{Title  of  cause.) 
This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  said  complainant,  and  it  appearing  by  his  report  on  file 
in  the  office  of  the  clerk  of  this  court,  that  the  receiver  has  made 
sale  of  the  real  and  personal  property  of  the  said  defendant :  It 
is,  on  this  day  of  ,  eighteen  hundred  and  , 

ordered,  that  the  said  sale  be  in  all  things  confirmed ;  and  that 
the  said  receiver  do  proceed  to  make  conveyance  of  the  said  real 
estate,  and  give  possession  of  the  said  personal  property  accord- 
ing to  the  conditions  of  the  said  sale;  and  that  he  hold  the 
moneys  derived  therefrom  to  abide  the  further  order  of  this 
court. 

(a)  If  a  reasonable  excuse  for  de-  ceiver,  so  as  not  to  interfere  with  pay- 
laying  to  make  an  earlier  claim  is  ments  already  made.  The  bias  of  the 
shown,  the  creditor  will  be  admitted  court,  on  application  to  be  let  in  to 
at  any  time  before  actual  distribution,  prove,  is  in  favor  of  the  creditor, 
or  even  after  partial  payments,  if  there  Grinnell  v.  Ins.  Co.,  1  C.  E.  Gr.  283. 
be  a  surplus  in  the  hands  of  the  re- 

2k 


546  FORMS   OF   PLEADINGS. 

Receiver's  deed  of  real  estate  to  purchaser. 

This  indenture,  made  this  day  of  ,  A.  d.  eighteen 

hundred  and  ,  by  and  between  A.  B.,  a  receiver  appointed 

by  the  Chancellor  of  the  State  of  New  Jersey,  party  of  the  first 
part,  and  L.  M.,  of  ,  party  of  the  second  part,  witnesseth  : 

That  whereas  in  and  by  an  order  of  the  said  court,  made  on 
the  day  of  ,  A.  d.  eighteen  hundred  and  ,  in 

a  certain  cause  in  said  court  pending,  in  which  G.  H.  is  com- 
plainant, and  the  company,  a  corporation  heretofore 
organized  and  doing  business  under  the  laws  of  the  State  of 
,  is  defendant,  it  was  ordered  (among  other  things,) 
that  the  said  A.  B.  be  appointed  receiver  of  the  said 
company,  with  the  usual  powers  of  receivers  in  equity,  upon  his 
taking  the  oath  required  by  law  and  giving  bond  in  the  penal 
sum  of  dollars,  with  sufficient  sureties,  to  be  approved  by 
{the  court,  or  otherwise,  as  the  case  may  be,)  and  that  upon  the 
approval  and  filing  of  such  bond  the  said  A.  B.  should  be  vested 
with  all  his  rights  and  powers  as  such  receiver. 

And  whereas,  on  the  day  of  ,  a.  d.  eighteen 

hundred  and  ,  said  receiver  duly  qualified  as  such,  in 

accordance  with  said  order. 

And  whereas,  by  a  certain  other  order  of  said  court,  made  and 
entered  in  the  cause  aforesaid,  on  the  day  of  A.  d. 

eighteen  hundred  and  ,  it  was  ordered  that  said  receiver 

should  advertise  the  real  estate  of  said  company,  being 

the  premises  hereinafter  described,  for  sale  according  to  law,  [or 
recite  order,  as  the  case  may  be.) 

And  whereas,  said  receiver,  in  accordance  with  said  last-named 
order,  did  advertise  (here  recite  the  particulars  of  the  advertise- 
w,ent  according  to  the  facts.) 

And  whereas,  the  said  party  of  the  second  part  has  bid  for 
said  real  estate,  being  the  premises  hereinafter  described,  the 
sum  of  dollars,  which  is  the  highest  and  best  bid  received 

therefor. 

And  whereas,  by  another  order  of  said  court,  made  and  entered 
in  the  cause  aforesaid,  on  the  day  of  ,  a.  d.  eighteen 

hundred  and  ,  it  was  ordered,  that  said  bid  be  approved 


INSOLVENT   CORPORATIONS.  547 

«nd  accepted  and  the  sale  confirmed,  and  that  said  receiver 
should  sell,  assign,  transfer  and  set  over  unto  said  party  of  the 
second  part  said  real  estate,  being  the  premises  hereinafter 
described,  for  said  sum  of  dollars,  being  the  amount  bid 

therefor  by  the  party  of  the  second  part  as  aforesaid  : 

Now,  therefore,  in  consideration  of  the  premises,  and  in  obedi^ 
ence  to  said  last-mentioned  order,  and  for  the  purpose  of  giving 
effect  to  the  same,  and  in  consideration  of  the  sum  of 
dollars  in  hand,  paid  by  the  said  party  of  the  second  part,  to 
the  said  party  of  the  first  part,  the  receipt  whereof  is  hereby 
acknowledged,  the  said  party  of  the  first  part  has  granted,  bar- 
gained and  sold,  and  by  these  presents  does  grant,  bargain,  sell 
and  convey  unto  the  said  party  of  the  second  part,  his  heirs  and 
assigns  forever,  all  that  certain  lot,  piece  or  parcel  of  land  situate, 
lying  and  being  in  ,  and  known  and  described  as  follows, 

to  wit :  {description  of  premises  conveyed;)  with  all  and  singular 
the  hereditaments  and  appurtenances  thereunto  belonging,  or  in 
anywise  appertaining,  and  all  reversions,  remainders,  rents,  issues 
and  profits  thereof,  and  all  the  estate,  right,  title,  interest,  claim 
and  demand  whatsoever,  either  in  law  or  in  equity,  of  the  party 
of  the  first  part  as  such  receiver  aforesaid,  or  of  the  said 
company,  of,  in  and  to  the  above-described  premises,  with  the 
hereditaments  and  appurtenances :  To  have  and  hold  the  same 
unto  the  said  party  of  the  second  part,  his  heirs  and  assigns,  to 
his  and  their  only  proper  use  and  benefit  forever. 

In  witness  whereof,  the  party  of  the  first  part,  as  such  receiver 
aforesaid,  has  hereunto  set  his  hand  and  seal  the  day  and  year 
first  above  written. 

[l.  s.] 
Signed,  sealed  and  deliv- 
ered in  presence  of — 

{Add  usual  acknowledgment.) 

Order  of  reference  to  state  receiver's  accounts,  &c. 

{Title  of  cause.) 
This  matter  being  opened  to  the  court  by  ,  of  counsel 

with    the    complainant,   and    it    appearing   that   the   receiver 


548  FORMS  OF   PLEADINGS. 

appointed  in  this  cause  is  ready  to  make  a  dividend  of  a  part  of 
the  assets  and  funds  in  his  hands  among  the  creditors  of  [naming 
corporation:)  It  is,  on  this,  &c.,  on  motion,  &c.,  ordered,  that  it 
be  referred  to  ,  esquire,  one  of  the  special  masters  of  this 

court,  to  take  and  state  an  account  of  the  several  sums  of  money 
which  have  come  to  the  hands  of  the  said  receiver  from  the 
debts  due  to  said  corporation,  and  from  the  sale  of  property 
belonging  to  said  corporation ;  and  also  of  the  sums  paid,  laid 
out  and  expended  by  the  said  receiver  relating  to  or  concerning 
his  duties  and  business  as  such  receiver;  and  that  the  said 
master  report  what  upon  such  accounting  remains  in  the  hands 
of  said  receiver  for  distribution,  and  he  is  to  have  power  to 
examine  the  said  receiver  upon  oath  or  otherwise,  and  also  other 
witnesses,  in  relation  to  said  account.  And  it  is  further  ordered, 
that  he  report  what  sum  should  be  allowed  to  said  receiver  for 
his  services  in  the  management  of  his  trust.  And  he  is  to  make 
his  report  touching  the  matters  hereby  referred  to  him  with  all 
convenient  speed;  and  if  in  taking  said  account  any  special 
matter  shall  arise,  he  is  to  be  at  liberty  to  state  the  same  to  the 
court. 

Master's  report  on  accounts  of  receiver.(a) 

( Title  of  cause.) 
In  pursuance  of  an  order  of  this  court  in  the  above-stated 
cause,  made  on  the  day  of  ,  by  which  it  was  ordered 

that  it  be  referred,  &c.,  {recite  order,)  I,  ,  do  respectfully 

(a)  It  was  held  in  New  York,  in  taking  a  receiver's  accounts.     Brower 

conformity   to  the  English   practice,  v.  Brower,  2  Edw.  Ch.  621 ;  see  Sheivell 

that  a  master's  report  npon  a  receiver's  v.  Jones,  2  S.  &  S.  170;  affirmed  on 

accounts  need  not  be  confirmed,  and  appeal,  3  Buss.  522.     In  this  state,  in 

cannot  be  excepted  to.     That  where  a  Mechanics'  Bank  v.  Bank  of  N.  B.,  2 

party  thinks   himself  aggrieved  the  Gr.    Ch.   437,   it   was  said  that   the 

proper  application  is  to  the  court  to  English  practice  of  taking  exceptions 

review  the  account  as  to  such  parts  as  to   the   accounts  before    the   master, 

are  objectionable,  and  then  the  court  while  the  account  is  in  his  possession, 

will   enter   into   the  consideration  of  and  before  he  makes  his  report,  had 

objections  as  to  the  general  principles  been  generally  acted  on  in  New  Jer- 

on  which  the  master  has  proceeded  in  sey.     But  leave  was  given  to  a  cred- 


INSOLVENT   CORPORATIONS.  549 

report  that,  having  first  duly  notified  the  receiver  aforesaid,  I 
was  attended,  at  ,  by  the  said  receiver  and  by  , 

esquire,  of  counsel  with  the  complainants,  on  the  day 

of  ,  &c.,  and  have  considered  of  the  matters  referred  to 

me.  I  have  taken  the  accounts  directed  by  the  said  order  to  be 
stated,  and  have  stated  the  same  in  schedules  hereunto  annexed, 
which  I  pray  may  be  considered  as  part  of  this  my  report ;  and 
I  find  that  there  has  been  received  by  the  said  receiver  for  debts 
due  to  (corporation,)  and  from  the  sale  of  property  belonging  to 
said  corporation,  the  sum  of  ,  as  will  appear  by  Schedule 

A  hereunto  annexed,  and  that  the  said  receiver  has  laid  out  and 
expended  for  {state  the  character  of  the  expenditures,)  relating  to 
or  concerning  his  business  and  duties  as  receiver  for  the  creditors 
and  stockholders  of  said  corporation,  the  sum  of  ,  as  will 

appear  by  Schedule  B  to  this  my  report  annexed,  which  sum, 
being  deducted  from  the  aforesaid  charges,  leaves  a  balance  of 
remaining  in  the  hands  of  the  receiver,  as  will  also 
appear  at  the  foot  of  Schedule  B.  I  have  also  taken  the  deposi- 
tion of  said  receiver  as  to  the  truth  of  the  said  accounts,  which 
are  hereto  annexed ;  and  in  the  taking  of  said  accounts  the  said 
receiver  produced  before  me  his  book  of  entries  for  incidental 
expenses  and  other  charges,  and  also  his  receipts  and  other 
vouchers,  which  are   marked  as  Exhibits  ,  whereby  it 

satisfactorily  appears  that  the  several  payments  hereinbefore 
referred  to  are  correct  in  sums  and  dates.  And  I  further  report, 
that  the  sum  of  dollars  should  be  allowed  the  said  receiver 

and  retained  by  him  out  of  the  funds  in  his  hands  for  his  ser- 
vices in  the  management  of  his  trust. 

Respectfully  submitted  this,  &c. 

(Signature  of  master.) 

itor,  for  s\;l:gtantial  reasons,  to  bring  tions  filed,  and  the  report  should  be 

his  objections  to  the  accounts  of  the  confirmed.     The  cases  seem  to  go  to 

receiver  before  the  court,  and  to  ap-  this    extent — that    while   exceptions 

pear  by  his  own  solicitor  for  that  pur-  may  be  filed  to  the  master's  report  on 

pose.    In  tlie  later  case  of  Richarrh  v.  the  receiver's  accounts,  such  reports 

Morris  Canal  Co.,  3  Gr.  Ch.  431,  how-  do  not  come  within  the  rule  requiring 

ever,   the   Cliancellor   expressed   the  notice  to  be  given  of  their  confirma- 

opinion  that  it  is  proper  to  review  tlie  tion. 
proceedings  of  the  muster  upon  excep- 


650  FOKMS   or   PLEADINGS. 

Exceptions  to  foregoing  report. 

{Title  of  cause.) 

Exceptions  taken  by  ,  one  of  the  creditors  of  the  said 

,  whose  claim  against  said  corporation  has  been  allowed 

by  the  receiver,  to  the  report  of  ,  esquire,  one  of  the 

special  masters  of  this  court,  made  in  this  cause,  and  dated,  &c. 

First  exception.  For  that  it  appears  in  and  by  the  said  report, 
and  the  schedule  thereto  annexed,  that  the  said  master,  in  taking 
and  stating  the  said  accounts  contained  in  said  schedule,  has  stated 
and  allowed,  as  part  of  the  expenditures  and  disbursements  of 
said  receiver,  the  following  sums,  viz.,  (state  items  excepted  to.) 

Whereas,  if  said  sums  have  been  paid  by  said  receiver,  they 
are  excessive,  and  were  paid  Avithout  authority,  and  not  in  the 
discharge  of  the  duties  of  his  office ;  and  said  sums  ought  not 
to  have  been  paid  by  said  receiver,  nor  allowed  by  said  master, 
as  part  of  his  regular  and  proper  disbursements  and  expenses. 

Second  exception.  For  that  [state  the  exception.) 

In  all  which  respects  the  said  exceptant  excepts  to  the  said 
master's  report,  and  respectfully  appeals  therefrom  to  the  judg- 
ment of  this  honorable  court. 

Appeal  to  Chancellor  from   determination  of  re- 

ceiver.(a) 

(Title  of  cause  and  address.) 

The  petition  of  respectfully  shows,  that  your  petitioner, 

being  a  creditor  of  the  said  corporation  to  a  large  amount,  did 

(a)  In  case  any  such  company,  or  the  execution  of  the  powers  and 
person  or  persons  whatever,  shall  authority  under  this  act,  is  hereby 
thinkthemselvesor  himself  aggrieved  vested  with  all  the  jurisdiction  and 
by  the  proceedings  or  determination  poAver  which  it  is  lawful  for  the  Court 
of  the  said  receiver  or  receivers,  or  of  Chancery  to  exercise  in  suits  de- 
trustee  or  trustees,  in  the  dischai-ge  of  jiending  in  that  court,  and  may  pro- 
their  duty,  it  shall  be  lawful  for  the  ceed  according  to  the  rules,  principles 
party  aggrieved  to  appeal  to  the  and  practice  of  that  court,  except 
Chancellor,  who  shall,  in  a  summary  when  otherwise  directed  by  this  act ; 
way,  hear  and  determine  the  matter  and  all  cases  brought  before  the  Chan - 
complained  of,  and  make  such  order  cellor,  under  this  act,  shall  be  con- 
touching  the  same  as  shall  be  equit-  sidered  as  depending  in  the  Court  of 
able  and  just ;  and  the  Chancellor,  in  Chancery,  and  the  orders  and   deci- 


INSOLVENT   CORPORATIONS.  551 

heretofore  and  within  due  time  present  his  claims  to  the  receiver 
appointed  in  this  cause,  for  allowance ;  that  the  same  were  pre- 
sented in  due  form,  properly  proved  and  substantiated  by  evi- 
dence, and  submitted  to  said  receiver,  and  that  said  receiver 
admitted  and  allowed  a  part  of  the  same,  but  as  to  a  certain 
other  part  he  refuses  to  allow  the  same.  And  your  petitioner 
conceives  that  he  is  aggrieved  by  said  refusal  of  said  receiver, 
and  insists  that,  &c.  And  your  petitioner  respectfully  appeals 
from  said  determination  of  said  receiver  refusing  as  aforesaid, 
to  this  honorable  court,  and  prays  that  the  same  may  be  reversed, 
and  such  order  made  in  the  premises  as  shall  be  agreeable  to 
equity  and  good  conscience.     And  your  petitioner,  &c. 

Order  confirming  sale  of  claims  due  an  insolvent 
corporation. 

{Title  of  cause.) 

It  appearing  to  the  court  by  the  report,  in  writing,  of  , 

receiver  of  the  said  the  ,  that  said  receiver  has,  in  pur- 

suance of  an  order  of  the  Chancellor  dated  the  day  of 

,  eighteen  hundred  and  ,  sold  in  the  manner  in 

said  order  mentioned  and  thereby  directed,  certain  claims  in  said 
order  referred  to ;  and  it  appearing  that  notice  was  duly,  and 
according  to  said  order,  given  of  the  time  and  place  of  such 
sale,  and  the  court  approving  of  said  sale :    It  is,  on  this 

day  of  ,  eighteen  hundred  and  ,  on  motion 

of  ,  counsel  of  said  receiver,  ordered,  that  said  sale  be  and 

the  same  is  hereby  confirmed ;  and  that  said  receiver  execute 
and  deliver  to  the  purchaser  a  good  and  sufficient  bill  of  sale 
and  transfer  of  said  claims  to  pass  the  right,  title  and  interest  of 
the  said  receiver  and  said  corporation  therein. 

And  it  is  further  ordered,  that  said  receiver  pay  out  of  any 
moneys  in  his  hands  the  expenses  attending  the  said  sale,  and 
to  his  solicitor  the  costs  on  the  petition  in  this  matter  to  be  taxed » 

sions  carried  into  effect  the  same  as  By  the  answer  of  the  receiver,  the 

in  other  causes  of  equity  jurisdiction.  issue  will  be  formally  made  between 

Bev.,  "Corporations,"  §  82.     The  ap-  the  parties.     If  the  facts  are  contro- 

pellant,   in   his    petition   of   appeal,  verted,   proof  can   be   taken   in   the 

should  state  his  case  fully,  and   the  ordinary  way.    Jackson  v.  Receivers,  1 

particulars  in  which  he  is  aggrieved.  Stock.  205. 


552  FORMS   OF   PLEADINGS. 

Order  for  final  dividend  and  discharge  of  receiver. 

{Title  of  cause.) 
This  cause  being  opened  to  the  court  by  ,  of  counsel 

for  the  receiver,  and  it  appearing  that  by  an  order  of  this  court 
made  on  the  day  of  last  past,  whereby  it  was 

referred  to  ,  one  of  the  masters  of  this  court,  to  state 

and  report  the  accounts  of  said  receiver,  and  also  what  would  be 
a  reasonable  compensation  to  said  receiver  for  his  services  as 
such,  said  master  has  made  his  report,  bearing  date  the 
day  of  last  past,  whereby  it  appears  that  the  total  receipts 

of  the  said  receiver  from  all  sources  are  dollars,  and  the 

total  disbursements  are  dollars ;  and  that  the  said  receiver 

should  be  allowed  for  his  compensation  as  such  the  sum  of 
dollars.   And  it  appearing  that  there  was  in  the  hands  of 
said  receiver,  at  the  date  of  his  last  report,  the  sum  of 
dollars,  and  that  since  that  date  he  has  received  for  interest  on 
moneys  on  deposit  dollars,  and  on  account  of  debts  due 

said  company,  dollars ;  and  that  since  the  date  of  said  last 

report  there  has  been  paid  by  said  receiver  for  taxes  due  and 
now  allowed,  the  sum  of  dollars,  and  to  ,  for 

master's  fees,  dollars,  and  for  postage  stamps, 

dollars.  And  it  further  appearing  that  by  an  order  of  this 
court  made  on  the  day  of  last  a  dividend  of 

per  centum  was  ordered  to  be  paid  upon  the  whole  amount 
of  claims  of  creditors  of  said  defendant  company;  and  that 
in  pursuance  of  said  order  said  receiver  has  paid  said  divi- 
dend, amounting  in  the  aggregate  to  dollars.  And  it 
further  appearing  that  there  is  at  the  date  of  this  order  in  the 
hands  of  the  receiver,  in  cash,  the  sum  of  dollars ;  and 
that  there  is  on  deposit  with  the  clerk  of  this  court  the  sum  of 

dollars,  proceeds  of  the  sale  of  certain  real  and  personal 

property  sold  by  an  order  of  this  court,  dated  day  of  : 

It  is,  on  this  day  of  ,  eighteen  hundred  and 

,  ordered,  that  said  master's  report  above  referred  to  be 
and  the  same  is  hereby  confirmed  and  approved ;  and  it  is 
further  ordered,  that  said  receiver  retain  out  of  the  moneys  in 
his  hands  the  sum  of  dollars,  in  full  for  his  services  and 


INSOLVENT   CORPORATIONS.  553 

<3ommissions  as  such  receiver ;  and  that  he  pay  to  the  solicitor 
of  the  complainants  their  costs  of  this  suit  to  be  taxed.  And  it 
is  further  ordered,  that  the  sum  of  dollars  be  allowed  and 

paid  to  ,  the  counsel  of  said  receiver  assigned  by  the  court, 

as  compensation  for  his  services ;  and  it  is  further  ordered,  that 
the  clerk  of  this  court  do  pay  to  the  said  receiver  the  moneys 
deposited  in  this  court  as  aforesaid,  together  with  all  interest 
accrued  thereon,  after  deducting  his  lawful  commissions.  And 
it  appearing  that  the  whole  amount  of  creditors'  claims  on 
which  dividends  are  now  to  be  made  is  dollars,  and  that 

a  final  dividend  of  per  centum  should  now  be  made  on 

that  sum,  it  is  further  ordered,  that  said  receiver,  after  deducting 
from  the  moneys  in  his  hands,  and  the  money  by  this  order 
directed  to  be  paid  over  to  him,  the  amounts  herein  directed  to 
be  paid  for  complainants'  costs,  counsel  fee  and  receiver's  com- 
missions, do  pay  to  the  creditors  of  said  defendant  company, 
upon  their  claims  before  mentioned  entitled  to  a  dividend,  a  final 
dividend  of  per  centum,  and  that  he  give  notice,  by  mail, 

at  least  ten  days  before  the  day  of  payment,  to  every  creditor 
entitled  to  said  dividend. 

And  it  is  further  ordered,  that  he  be  discharged  from  his 
office  of  receiver  and  from  all  liabilities  on  account  thereof, 
except  so  far  forth  as  respects  the  payment  of  said  dividend  and 
any  money  or  assets  that  may  hereafter  come  to  his  hands 
belonging  to  the  defendant  company. 

Petition  by  complainant  for  receiver's  discharge. 

( Title  and  address.) 

The  humble  petition  of  ,  the  complainant,  showeth  as 

follows : 

1.  {Recite  decree  or  order  appointing  receiver,  subject  to  his 
giving  security^  and  the  certificate  of  such  security  having  been 
given.  Or  the  decree  or  order  directing  a  proper  person  to  be 
appointed  receiver,  and  the  subsequent  order  appointing  such 
person.) 


554  FORMS   OF   PLEADINGS. 

2.  {State  to  what  time  the  receiver  has  passed  his  accounts,  and 
accounted  for  his  balances,  as  thus:}  Pursuant  to  the  said  decree, 
&c.,  the  said  A.  B.  has  passed  his  accounts  as  such  receiver  to 
the  day  of  ,  eighteen  hundred  and  ;  and  has 
paid,  in  the  manner  thereby  directed,  the  balances  from  time  to 
time  certified  to  be  due  from  him  on  his  said  accounts. 

3.  {State  why  a  receiver  has  ceased  to  be  necessary,  as  thus :) 
By  an  order  dated  the  day  of  ,  eighteen  hundred 
and  ,  C.  D.  and  E.  F.  have  been  appointed  trustees  of 
the  real  estate  of  the  testator,  G.  H.,  and  such  estate  has  been 
conveyed  to  and  vested  in  them,  upon  the  trusts  of  his  will. 
By  reason  thereof  it  is  expedient  that  the  appointment  of  a 
receiver  of  the  said  estate  should  be  discontinued. 

Your  petitioner  therefore  prays,  that  the  said  A.  B.  may  be 
discharged  from  being  receiver  as  aforesaid ;  and  that  he  may 
be  ordered  to  pass  his  final  account  as  such  receiver,  and  pay  the 
balance  certified  to  be  due  from  him  thereon  into  the  bank,  to 
the  credit  of  this  cause  {or  as  the  case  may  be.) 

Petition  of  receiver  for  his  discharge. 

{Title  of  cause  and  address.) 

The  petition  of  respectfully  represents,  that  he  is  the 

receiver  duly  appointed  by  this  court  in  the  above-stated  cause ; 
that  as  such  receiver  he  has  fully  accounted  for  the  estate  in  his 
hands  as  such ;  that  such  accounts  have  been  approved  by  this 
court ;  that  he  has  made  distribution  of  all  of  the  estate  of  said 
corporation  in  his  hands  as  such  receiver,  pursuant  to  the  order 
of  this  court  herein,  as  appears  by  the  receipts  hereto  annexed  ; 
that  one  of  the  creditors  of  said  corporation,  to  wit,  ,  has 

neglected  to  apply  for  the  dividend  payable  to  him  herein, 
amounting  to  the  sum  of  dollars,  and   the   same   still 

remains  in  the  possession  of  your  petitioner.  Wherefore,  your 
petitioner  prays  that  he  may  be  permitted  to  pay  said  sum  of 
dollars  remaining  in  his  hands  as  such  receiver  into  this 
court ;  and  that  he  may  thereupon  be  discharged  from  his  said- 
trust,  and  that  his  bond  be  vacated. 


ERRATUM. 

Page  554,  last  line,  strike  out 

"  and  that  his  bond  be  vacated." 


INSOLVENT   CORPORATIONS.  555^ 

Order  discharging  receiver. 

{Title  of  cause.) 
On  reading  and  filing  the  petition  of  the   receiver  herein, 
dated  the  day  of  instant,  and  the  receipts  annexed 

thereto,  whereby  it  appears  that  said  receiver  has  duly  accounted 
as  such,  and  has  made  distribution  of  the  estate  in  his  hands  in 
this  cause  pursuant  to  the  order  of  this  court,  except  the  sum  of 
dollars,  which  still  remains  in  his  hands,  and  on  motion 
of  ,  of  counsel  for  the  receiver  herein  :    It  is,  on  this 

day  of  ,  eighteen  hundred  and  ,  ordered, 

that  said  receiver  do  pay  the  said  sum  of  dollars  remaining 

in  his  hands,  to  the  clerk  of  this  court,  to  the  credit  of  the  above- 
entitled  cause ;  and  that  upon  making  such  payment  he  be  there- 
upon released  and  discharged  from  his  trust  as  such  receiver. 

Form  of  receiver's  certificate  for  loan  of  moneys. 

This  is  to  certify,  that  there  will  become  due  on  the 
day  of  next,  to  ,  or  order,  from  ,  as  receiver 

(but  not  personally)  of  ,  under  appointment  by  the  Court 

of  Chancery  of  the  State  of  New  Jersey,  the  sum  of 
dollars,  with   interest   thereon   from  this  date,  at  the  rate   of 
per  cent,  per  annum,  for  money  this  day  loaned  to  the 
said  receiver.     This  certificate  is  issued  under  and  by  virtue  of 
the  provisions  of  an  order  made  on  ,  eighteen  hundred 

and  ,  by  the  Court  of  Chancery  of  New  Jersey,  in  a  cause 

therein  depending,  wherein  is  complainant  and  is 

defendant,  and  is  one  of  a  series  of  receiver's  certificates  author- 
ized to  be  issued  by  such  order,  and  by  virtue  thereof  the  said 
certificates  are  made  a  first  and  paramount  lien  upon  (1)  all  the 
tools,  machinery  and  fixtures,  and  other  property  used  for  manu- 
facturing purposes  in  the  iron  works  and  wood  works  of  the 
said  company,  located  in  the  city  of  ,  in  this  state,  the 

same  being  particularly  set  forth  and  described  in  the  receiver's 
inventory,  subject  to  the  lien  of  a  chattel  mortgage  thereon  held 
by  ,  provided  the  same  is  valid,  on  which  there  is  owing, 

as  it  is  claimed,  the  sum  of  dollars  of  principal,  and  sub- 

ject also  to  any  and  all  valid  unpaid  claims  for  labor,  which  by 


556  FORMS   OF   PLEADINGS. 

the  statutes  of  New  Jersey  are  made  a  first  lien  thereon;  (2) 
upon  all  the  materials  unmanufactured  and  partly  manufactured, 
which  were  in  said  wood  works  and  iron  works  belonging  to 
said  corporation  defendant,  at  the  time  of  the  appointment  of 
the  said  receiver,  the  same  being  also  described  in  said  inventory ; 
(3)  upon  all  the  machines  which  shall  be  manufactured 

by  the  said  receiver,  in  pursuance  of  the  provisions  of  the  above- 
mentioned  order. 

This  certificate  is  payable  at  ,  New  Jersey. 

{Signature  of  receiver.) 

( To  be  endorsed  on  back  of  certificate :) 

The  following  are  the  provisions  of  the  order  of  the  Court  of 
Chancery  above  referred  to,  relating  to  the  issue  of  certificates  of 
indebtedness  :  (here  insert  provisions  of  order.) 

Another  form  of  receiver's  certificate. 

{Title  of  cause.) 

I,  ,  receiver  of  the  railway  company,  appointed 

by  the  Court  of  Chancery  of  New  Jersey,  hereby  certify  and 
make  known,  that  I  have,  as  receiver  as  aforesaid,  received  from 
the  sum  of  dollars,  to  be  used  in  the  administration 

of  my  trust  as  said  receiver,  under  the  direction  of  the  court,  and 
which,  as  such  receiver,  I  hereby  promise  to  pay  with  interest 
thereon,  at  the  rate  of  per  centum  per  annum,  from,  the 

date  hereof,  to  said  or  order,  out  of  the  property  of  said 

railway  company,  or  the  proceeds  thereof,  prior  to  any  other  debt 
or  demand  of  any  kind  or  character  whatsoever,  whether  such 
debt  or  demand  be  secured  or  claimed  so  to  be,  by  way  of  lien, 
pledge,  preference,  mortgage  or  encumbrance ;  such  payment  to 
be  made  as  aforesaid,  at  the  close  of  said  receivership,  or  at  such 
other  time,  antecedently  thereto,  as  said  Court  of  Chancery  may 
direct.  Interest  thereon  shall  cease  in  ten  days  after  an  order  of 
this  court  for  the  payment;  and  upon  a  notice  being  mailed 
within  the  ten  days,  by  the  receiver,  to  the  holder  of  the  certifi- 
cates, if  the  address  of  such  holder  be  known. 


INSOLVENT   CORPORATIONS.  557 

And  I  do  hereby  further  certify,  that  this  certificate  is  issued 
under  the  authority  of  and  pursuant  to  an  order  of  the  Court  of 
Chancery  of  New  Jersey,  dated  ,  eighteen  hundred  and 

,  made  in  the  causes  aforesaid. 

And  I  do  further  certify,  that  the  amount  named  in  this  cer- 
tificate is,  by  the  terms  of  said  order  of  said  court,  together  with 
other  certificates  for  a  like  sum  and  of  like  tenor  with 
this,  amounting  in  all  to  the  sum  of  dollars,  made  a  lien 

upon,  and  a  first  charge  against,  the  entire  property  of  said 
defendant  corporation,  or  the  proceeds  thereof,  prior  to  any  other 
lien,  charge,  preference,  encumbrance  or  mortgage  thereon  or 
thereof.  {Signature  of  receiver.) 

Another  form  of  receiver's  certificate. 

No 

Railroad  Company. 

receiver's  certificate. 

This  is  to  certify,  that  the  undersigned,  and  ,  as 

receivers  of  the  railroad  company,  and  not  individually, 

are,  for  value  received,  indebted  to  bearer  in  the  sum  of 
dollars,  payable  in  gold  coin  of  the  United  States  of  America  of 
the  present  standard,  at  the  city  of  ,  one  year  from  the 

date  hereof,  or  sooner,  as  hereinafter  provided,  with    interest 
thereon  from  the  date  hereof  in  like  gold  coin,  at  the  rate  of 
per  cent,  per  annum,  payable  semi-annually  on  the  first 
days  of  and  in  each  year.     This  certificate  is  part 

of  an  issue  of  certificates  of  like  tenor  and  date,  not  exceeding 
in  the  aggregate  dollars,  and   numbered   consecutively 

from  one  upwards,  authorized  by  the  order  of  the  {court)  in  the 
suit  in  equity  pending  in  said  court,  wherein  and 

are  complainants  and  the  railroad  company  is  defendant ; 

which  said  order  bears  date  {date,)  and  declared  in  and  by  said 
order  to  be  a  debt  of  the  undersigned  as  such  receivers,  incurred 
for  the  benefit  and  protection  of  the  property  of  said  railroad 
company  by  the  redemption  of  securities,  and  primarily  secured 
by  the  special  pledge  in  trust  of  the  securities,  or  the  proceeds 
thereof,  redeemed  by  means  of  such  certificates,  as  provided  for 
in  said  order;  and,  secondly,  by  a  lien  on  the  income  of  the 


558  FORMS   OF   PLEADINGS. 

railroad  and  property  of  said  railroad  company,  as  pro- 

vided in  said  order ;  and,  lastly,  by  a  lien  upon  the  corpus  of 
said  railroad  and  property  prior  to  the  lien  of  the  several  mort- 
gages or  deeds  of  trust  upon  the  railroad  property  of  said  com- 
pany, save  and  except  only  as  provided  in  said  order.  This 
certificate  may  be  paid  before  maturity  under  the  direction  of 
said  court.  This  certificate  and  all  rights  and  liens  thereunder 
shall  be  transferable  by  delivery. 

In  witness  whereof,  the  said  undersigned  receivers  have,  pur- 
suant to  the  order  of  the  court  hereinbefore  recited,  hereunto  set 
their  hands  and  seals  the  day  of  ,  eighteen  hundred 

and  .  {Signatures  of  receivers.) 


BILLS  FOR  RELIEF,  &c. 

Bill  for  relief  against  a  judgment  at  law. (a) 

{Address.) 

Complaining,  showeth  unto  your  Honor  your  orator,  , 
of  the  county  of             ,  and  State  of  New  Jersey,  that  on  or 

(o)  The   Court  of  Chancery  exer-  The  court  will  relieve  against  the 

cises  a  jurisdiction  of  looking  into  the  fraudulent   use  of  a  bona  fide  judg- 

judgments  of  other  courts  and  reliev-  ment,    against    awards    fraudulently 

ing  against  them  for  fraud.     Tomkins  obtained,  against   verdicts   and   pro- 

V.  Tomkins,  3  Stock.  512.  bates  of  wills,  and  even  against  pri- 

Where  the  judgment  has  been  pro-  vate  acts  of  legislative  bodies  ob- 
cured  by  artifice  or  concealment  on  tained  by  fraud.  Ibid. 
the  part  of  the  plaintiff,  and  the  The  usual  ground  upon  which  a 
court  where  the  fraud  has  been  per-  court  of  equity  refuses  to  interfere 
petrated  is  not  able  to  give  relief,  with  a  judgment  is  because  the  de- 
then  this  court  will  take  hold  of  the  fendant  should  have  protected  him- 
party  who  has  committed  the  fraud,  self  in  the  court  where  the  judgment 
and  prevent  his  using  his  judgment  is  obtained.  The  objection  can  have 
to  the  injury  of  his  adversary;  or,  if  no  weight  when  the  judgment  is  in 
he  has  enforced  his  judgment,  the  attachment  and  the  proceedings  have 
court  will  hold  him  a  trustee,  and  been  wholly  ex  parte.  Ibid. 
compel  him  to  account  for  the  fruits  But  even  in  the  case  where  a  judg- 
of  his  iniquity.    Ibid.  ment  has  been  obtained  in  the  absence 

The  court  will  decree  a  party  to  of  a  party,  and  upon  a  hearing  entirely 

cancel   a  judgment  obtained  against  ex  parte,  this  court  will  not  try  the 

conscience.    Ibid.  merits  of  the  case  over  again,  where 


BILLS    FOR   RELIEF,  ETC. 


559 


about  the  day  of  ,  eighteen  hundred  and  , 

your  orator's  father,  ,  of  the  township  of  ,  county 

of  and  State  of  New  Jersey,  departed  this  life  seized  in 

fee  of  a  certain  farm  containing  about  acres,  situate  in  the 

township  of  ,  in  the  county  and  State  aforesaid. 

That  the  said  ,  previous  to  his  death,  made,  published 

and  declared  his  last  will  and  testament,  duly  executed,  to  pass 
real  estate,  then  being  likewise  seized  of  the  farm  aforesaid  on 
which  he  lived,  which  said  last  will  was  as  aforesaid  published, 
and  bore  date  on  the  day  of  ,  in  the  year  aforesaid, 

and  was  never  by  him  in  anywise  revoked  or  altered,  and  which 
was  after  his  decease  duly  proven  before  the  surrogate  of  said 
county  of  ,  on  or  about  the  day  of  ,  eighteen 

hundred  and  ,  and  probate  thereof  was  then  duly  granted 

unto  and  ,  the  executors  therein  named,  as  by  the 


they  have  been  properly  submitted 
to  the  tribunal  established  by  law  to 
hear  and  adjudicate  upon  them.   Ibid. 

In  the  case  of  attachment  where 
the  plaintifi'  imposes  a  fictitious  claim 
upon  the  auditors,  or  a  claim  which 
has  been  satisfied,  if  he  conceals  from 
the  auditors  any  fact  which  tends  to 
show  that  his  claim  is  not  a  valid 
one,  he  commits  a  fraud  against  which 
this  court  will  grant  relief,  either  by 
enjoining  the  enforcement  of  the 
claim  or  ordering  such  restitution  as 
the  circumstances  of  the  case  will 
justify,    Ihid. 

The  fact  that  a  party  has  set  up 
in  a  suit  at  law  matters  which  are 
grounds  of  equitable  relief  only,  will 
be  no  bar  to  his  right  to  relief  in  a 
court  of  equity.  Hughes  v.  Nelson, 
2  Stem.  Eq.  547*! 

Where  a  party  is  complainant  in 
equity  and  defendant  (upon  the  same 
matter)  at  law,  he  cannot  be  com- 
pelled to  make  his  election — it  is  not 
as  if  he  were  complainant  in  both 
courts.  Botts  V.  Cozine,  2  Edw.  Ch. 
583.    See  page  117 ,  ante. 


The  Court  of  Chancery  may,  upon 
a  sufficient  case  being  made,  under  an 
original  bill,  give  relief  against  the 
judgment  of  any  judicial  tribunal. 
Jewett  V.  Dringer,  4  Steu:  Eq.  586. 

Objections  which  relate  to  the  regu- 
larity of  a  judgment  at  law,  or  to  the 
validity  of  the  instrument  upon  which 
it  is  founded,  are  not  relievable  in 
equity.  Mech.  Nat.  Bank  v.  Burnet 
Mfg.  Co.,  6  Stew.  Eq.  486.  See  as  to 
relief  from  a  judgment  founded  in 
fraud,  Doughty  v.  Doughty,  12  C.  E. 
Gr.  315. 

The  mere  non-residence  of  a  plain- 
tiff in  a  judgment  at  law,  and  the 
consequent  inability  of  the  defendant 
therein  to  serve  process  on  him  in 
other  proceedings  at  law,  is,  of  itself, 
no  ground  for  staying  the  enforcement 
of  such  judgment.  Jackson  v.  Bell, 
4  Stew.  Eq.  514 ;  S.  C,  5  Stew.  Eq.  411. 

Equity  only  interferes  M'ith  an  action 
at  law  where  there  are  equitable  cir- 
cumstances which  render  it  unjust  as 
against  the  defendant  at  law  that  the 
suit  sliould  proceed.  Long  Dock  Co. 
V.  Bentley,  10  Stew.  Eq.  15. 


560  FORMS   OF   PLEADINGS. 

letters  of  probate  so  granted  by  said  surrogate  and  the  said  last 
will  and  testament  of  record  in  the  office  of  said  surrogate  will 
more  fully  and  at  large  appear,  reference  being  thereunto  had  if 
it  be  needful  so  to  do. 

And  your  orator  further  showeth  unto  your  Honor,  that  the 
said  did,  in  and  by  his  said  last  will  and  testament,  devise 

as  follows,  among  other  things,  in  substance,  to  wit,  {insert  pro- 
visions of  will,)  as  in  and  by  said  last  will,  to  which  your  orator 
prays  leave  to  refer  if  it  be  necessary  so  to  do,  will  more  fully 
and  at  large  appear. 

And  your  orator  further  showeth,  that  after  the  decease  of  the 
said  dower  was  duly  assigned  unto  your  orator's  mother, 

widow  of  the  said  ,  of  and  in  the  said  real  estate  of  which 

he   died   seized   as   aforesaid,  and   that   the  said  ,  your 

orator's  said  mother,  had,  held,  possessed  and  enjoyed  as  of  her 
said  dower  the  lands  and  premises  following,  that  is  to  say : 
{here  describe  premises.) 

And  your  orator  further  showeth  to  your  Honor,  that  the  said 
,  mother  of  your  orator  and  widow  of  the  said  , 

departed  this  life  on  or  about  the  day  of  ,  eighteen 

hundred  and  ,  and  that  on  or  about  the  day  of 

,  eighteen  hundred  and  ,  she  made  and  published 

a  certain  will,  which  was  after  her  decease,  and  on  the 
day  of  ,  eighteen  hundred  and  ,  proven  by  , 

one  of  the  executors  therein  named,  by  the  oath  of  ,  one  of 

the  two  subscribing  witnesses  thereto,  and  letters  of  probate 
were  thereupon  granted  by  ,  then  surrogate  of 

county,  before  whom  the  said  will  was  proven,  unto  the  said 
,  as  executor  thereof,  as  by  the  said  will  and  letters  of 
probate  on  record  in  the  office  of  the  surrogate  of  county, 

will  more  fully  and  at  krge  appear. 

And  your  orator  further  showeth  to  your  Honor,  that  after 
the  decease  of  your  orator's  said  father,  and  during  the  lifetime 
of  your  orator's  said  mother,  your  orator  had  become  unfortu- 
nate in  his  worldly  affairs ;  that  your  orator  had  a  family  con- 
sisting of  children,  whom  he  was  unable,  through  sickness 
and  divers  misfortunes,  adequately  to  support ;  that  your  orator, 
with  the  hope  of  doing  better  in  worldly  matters,  removed  from 


BILLS   FOR   RELIEF,  ETC.  561 

the  State  of  New  Jersey  and  resided  at  diflferent  times  in  different 
western  states  of  the  United  States ;  and  that  your  orator,  at  the 
time  aforesaid  of  proving  said  will,  and  until  on  or  about  the 
day  of  ,  eighteen  hundred  and  ,  resided  out 

of  the  State  of  New  Jersey. 

And  your  orator  further  showeth,  that  among  your  orator's 
said    children    was    one,   a    girl   named  ,  whom   your 

orator's  said  mother  in  her  declining  years,  partly,  as  your  orator 
believes,  out  of  affection  and  kindness  to  your  orator,  her  son, 
and  in  order  to  help  him  in  the  support  of  his  family,  and  partly 
from  affection  for  her  and  a  desire  that  she  should  have  one  of 
her  granddaughters  with  her  to  cheer  and  comfort  her  old  age, 
invited  and  took  to  live  with  her ;  that  the  child  was  so  taken 
by  her  grandmother  while  living  with  her  mother  in  this  state, 
your  orator  being  at  the  time  away  and  knowing  nothing  about 
it,  at  the  age  of  about  years ;  that  the  said  ,  your 

orator's  mother,  adopted  the  said  child  as  her  daughter,  fed, 
clothed,  supported  and,  to  some  degree,  educated  her,  whilst  the 
said  girl  on  her  part  served  her  said  grandmother  dutifully,  and 
affectionately  attended  to  her  wants,  and  was  unto  her  as  a 
daughter;  and  your  orator  charges  that  neither  your  orator's 
said  mother,  nor  his  said  daughter,  nor  your  orator,  ever  deemed 
or  treated  the  relation  subsisting  between  the  said  grandmother 
and  her  said  granddaughter  as  one  calling  for  pecuniary  remuner- 
ation on  either  side,  nor  was  there  ever  any  bargain  or  contract 
between  your  orator  and  his  mother,  either  express  or  implied, 
by  which  any  debt  or  demand  whatever  was  created  or  existed 
in  favor  of  your  orator's  said  mother  against  your  orator,  for  the 
board  or  nurture,  support  or  education,  of  your  orator's  said 
daughter. 

And  your  orator  further  showeth  unto  your  Honor,  that  your 
orator's  said  brother,  ,  of  the  county  of  ,  the  executor 

named  as  aforesaid  in  the  said  will  of  ,  was  well  acquainted 

with  the  terms  and  relation  on  which  your  orator's  daughter 
aforesaid  lived  with  her  grandmother ;  that  he  knew  of  the 
affection  and  kindness  which  subsisted  between  them,  and  could 
not  have  supposed  or  believed,  and  your  orator  charges  that  he 

2l 


562  FOEMS   OF   PLEADINGS. 

did  not  suppose  or  believe,  that  his  said  mother  ever  thought  or 
expected  that  a  pecuniary  debt  had  been  incurred  by  your  orator 
to  his  said  mother  by  reason  of  the  kindness,  affection  and  good- 
will she  had  exhibited  to  your  orator's  daughter  in  manner  afore- 
said. 

And  your  orator  further  showeth  to  your  Honor,  that  two 
days  after  receiving  probate  of  the  will  of  ,  deceased,  as 

her  executor,  the  said  ,  desirous  to  defraud  your  orator 

out  of  the  little  heritage  belonging  to  him,  and  by  abuse  of  the 
process  of  the  courts  of  this  state  to  acquire  a  title  to  your  orator's 
share  of  the  premises,  part  of  his  father's  estate,  of  which  your 
orator's  mother  had  been  endowed  as  aforesaid,  made  his  affidavit 
before  ,  then  one  of  the  justices  of  the  peace  of  the  county 

of  ,  that  he  was  the  executor  of  the  last  will  and  testa- 

ment of  ,  deceased  ;  that  your  orator,  ,  was  indebted 

to  the  estate  of  said  in  the  sum  of  dollars,  and  that 

your  orator  was  not,  to  the  knowledge  or  belief  of  the  said 
,  then  resident  in  the  State  of  New  Jersey,  and  having 
caused  the  same  to  be  affiled  in  the  office  of  the  clerk  of  the 
Circuit  Court  of  the  county  of  ,  procured  a  writ  of  foreign 

attachment  in  an  action  of  trespass  on  the  case  upon  promises 
to  be  issued  from  said  Circuit  Court  in  favor  of  him,  the  said 
,  as  executor  of  said  ,  against  the  said  your  orator 

as  a  non-resident  debtor,  and  thereupon  caused  the  sheriff  of  the 
county  of  to  attach  the  share  of  your  orator  in  the  said 

above- described  lands  and  premises  occupied  by  his  said  mother 
as  of  her  said  dower,  being  an  undivided  fifth  part  thereof, 
under  and  by  virtue  of  the  said  writ  of  attachment ;  and  the 
said  sheriff  of  said  county  did  so  attach  the  same  accordingly,  to 
wit,  on  the  day  of  ,  in  the  year  eighteen  hundred 

and  ,  and  in  obedience  to  the  said  writ,  return  the  same, 

with  an  inventory  and  appraisement  annexed,  unto  the  said 
court,  at  the  term  of  ,  eighteen  hundred  and  ,  said 

property  so  attached  being  appraised  at  dollars. 

And  your  orator  further  showeth,  that  he  was  then  residing 
in  the  state  of  ,  as  his  brother,  the  said  ,  then  well 

knew  ;  that  he  heard  nothing  whatever  of  the  issuing  of  the  said 
attachment,  or  of  the  proceedings  of  the  action  thereon  founded. 


BILLS   FOR   RELIEF,  ETC.  563 

till  long  after  the  same  was  concluded,  to  wit,  until  on  or  about 
the  day  of  ,  eighteen  hundred  and  ;  that  after 

his  return  he  was  never  informed  of  the  matter  by  any  of  his 
brothers,  and  fully  supposed  himself  the  owner  of  said  property 
until  nearly  a  year  after  his  return;  that  it  appears  by  the 
records  of  said  court,  that  said  action  proceeded  at  the  term  of 
,  eighteen  hundred  and  ,  to  judgment  on  the  report 

of  auditors  by  the  said  court  appointed  ;  that  your  orator 

is  informed  and  believes,  and  it  so  appears  by  the  written  claim 
filed  in  the  cause,  that  the  report  made  in  said  cause  by  said 
auditors  was  founded  on  a  claim  made  by  said  ,  as  executor 

as  aforesaid,  against  your  orator  for  the  maintenance  by  her 
grandmother  aforesaid  of  your  orator's  daughter,  the  said  , 

from  ,  eighteen  hundred  and  ,  to  ,  eighteen  hun- 

dred and  ;  that  the  said  claim  does  not  in  anywise  allege 

that  said  maintenance  was  furnished  by  request  of  your  orator ; 
that  your  orator  has  no  knowledge  upon  what  testimony  said 
report  was  founded,  but  your  orator  states  that  the  said  auditors 
reported  that  there  was  due  to  the  said  ,  as  such  executor, 

from  your  orator,  and  the  said  Circuit  Court,  at  their  said 
term,  thereupon  gave  judgment  that  he  should  recover  as  such 
executor  against  your  orator  the  sum  of  dollars  and 

cents,  besides  dollars  and  cents  costs,  and  for  proof 

of  the  facts  aforesaid  your  orator  prays  leave  to  refer,  if  it  be 
needful  so  to  do,  unto  the  record  of  said  judgment  in  attachment 
still  remaining  in  the  said  Circuit  Court,  or  a  duly  certified  copy 
thereof  and  the  papers  therein  filed. 

And  your  orator  further  showeth,  that  the  said  ,  after 

the  recovery  of  said  judgment  in  attachment,  caused  and  pro- 
cured the  auditors  appointed  in  said  suit  to  expose  for  sale  at 
public  vendue  the  interest  and  estate  aforesaid  of  your  orator  in 
the  lands  and  premises  aforesaid  ;  that  the  same  was  sold  at  the 
public  house  of  ,  in  ,  on  the  day  of  , 

eighteen  hundred  and  ,  unto  the  said  ,  for  the  sum 

of  dollars,  and  a  deed  therefor,  on  the  day  of  the 

same  month  of  ,  sealed  and  delivered  by  the  said  auditors 

appointed  in  said  suit  unto  said  ,  conveying  unto  him,  his 


564  FORMS   OF   PLEADINGS. 

heirs  and  assigns,  your  orator's  said  interest  in  said  premises,  as 
in  and  by  said  deed,  recorded  in  the  office  of  the  clerk  of 
county,  in  Liber  of  Deeds,  pages  ,  will  fully  appear. 

And  further,  your  orator  shows  unto  your  Honor,  that 
immediately  after  the  execution  and  delivery  of  said  deed  to 
him,  the  said  ,  and  on  or  about  the  day  of  ,  in 

the  year  last  aforesaid,  the  said  and  ,  his  wife,  jointly 

with  and  ,  his  wife,  late  ,  ,  and  ,  his 

wife,  late  ,  and  ,  his  wife,  and  and  , 

his  wife,  your  orator's  brothers,  brothers-in-law  and  sisters, 
stating  themselves  therein  to  be  children  and  heirs-at-law  and 
devisees  of  ,  deceased,  your  orator's  father,  did,  by  deed 

under  their  hands  and  seals  duly  made  and  executed,  bearing 
date  the  said  day  of  ,  in  the  year  last  aforesaid,  with 

full  covenants  of  warranty,  bargain,  sell,  give,  grant  and  convey 
unto  one  ,  of  the  city  of  ,  county  of  and 

State  of  ,  the  said  tract  of  land  and  premises,  containing, 

as  therein  expressed,  acres  and  of  an  acre  of  land, 

lor  the  consideration  therein  expressed  to  be  paid  by  the  said 

to  them,  of  dollars,  under  which  the  said 

took  possession  of  said  premises,  and  he,  his  heirs  or  assigns, 
have  hitherto  enjoyed  and  do  now  use,  occupy  and  enjoy  the 
same. 

And  your  orator  shows  and  charges,  that  by  means  of  the 
premises  your  orator  has  been  greatly  defrauded  and  injured  by 
the  said  ;  that  the  whole  transaction  was  a  scheme  for 

acquiring  and  making  title  to  said  land,  and  defrauding  your 
orator  of  his  rightful  share  therein,  concocted  and  carried  out  by 
the  said  :   that   your  orator  is  informed,  believes  and 

charges,  that  the  sale  of  said  premises  as  aforesaid  was  deter- 
mined upon  previous  to  the  issuing  of  said  attachment,  if  not 
actually  effected  and  agreed  upon  between  the  said  and 

the  purchaser;  that  your  orator  is  informed  and  charges  that 
dollars  more  than  what  is  stated  in  said  deed  was  paid 
for  said  land  to  the  said  ,  making  in  all  dollars  as 

the  consideration  thereof ;  that  the  said  land  was  sold,  which- 
ever price  was  realized  therefor,  for  an  inadequate  price  less  than 
its  value ;  that  your  orator  considers  his  share  in  said  land  as 


BILLS   FOR   RELIEF,  ETC.  565 

worth  dollars,  and  that  by  reason  of  the  fraud  so  prac- 

ticed as  aforesaid  your  orator  hath  been  reduced  to  great  poverty 
and  distress,  and  is  now  an  inmate  of  the  alms-house  of  the  city 
of 

And  your  orator  shows  that  he  is  unable  to  adduce  any  proof 
at  this  time  sufficient  to  charge  the  said  purchaser  of  said  land 
with  knowledge  of  the  fraud  practiced  as  aforesaid  in  regard  to 
said  land,  and  he  insists  and  charges  that  the  said  ought, 

by  the  rules  of  this  court  and  according  to  equity  and  good  con- 
science, to  be  holden  and  decreed  to  have  become  and  to  be 
chargeable  as  trustee  for  your  orator  of  a  sum  of  money  equal 
to  the  value  of  your  orator's  share  in  the  said  land  and  premises. 

And  your  orator  further  showeth  to  your  Honor,  that  he  hath 
frequently  and  in  a  friendly  manner  applied  to  the  said  , 

represented  to  him  the  necessities  of  your  orator  and  the  fraud 
as  aforesaid  practiced  upon  him,  and  demanded  of  him  to  pay  to 
your  orator  a  sum  of  money  equal  to  the  value  of  your  orator's 
interest  in  said  land,  or  at  least  equal  to  the  share  of  the  pur- 
chase-money by  him  received  to  which  your  orator  in  fairness 
would  be  entitled,  and  to  cancel  and  make  void  the  said  judg- 
ment ;  and  your  orator  well  hoped  that  the  said  would 
have  complied  with  such  reasonable  request  of  your  orator ;  but 
now,  so  it  is,  may  it  please  ^our  Honor,  that  the  said 
refuses  to  comply  with  such  reasonable  requests  of  your  orator, 
or  to  pay  him  any  money  whatsoever  on  account  of  the  prem- 
ises, but  makes  divers  false  and  fraudulent  pretences  in  regard 
to  his  conduct  in  the  premises,  all  of  which  are  contrary  to 
equity  and  good  conscience,  and  tend  to  the  manifest  wrong  and 
injury  of  your  orator. 

In  tender  consideration  whereof,  and  forasmuch  as  your  orator 
hath  no  adequate  remedy  in  the  premises  according  to  the  strict 
rules  of  the  common  law,  and  can  only  have  relief  in  a  court  of 
equity,  where  matters  of  this  sort  are  properly  cognizable  and 
relievable :  To  the  end,  therefore,  that  the  said  may,  upon 

corporal  oath,  full,  true,  direct  and  perfect  answer  make  to 
all  and  singular  the  matters  hereinbefore  stated  and  charged  as 
fully  and  particularly  as  if  the  same  were  hereinafter  repeated 
and  thereto  distinctly  interrogated,  and  that  not  only  as  to 


566  FORMS   OF   PLEADINGS. 

the  best  of  several  and  respective  knowledge  and  remem- 

brance, but  also  as  to  the  best  of  several  and  respective  in- 

formation, hearsay  and  belief,  and  that  the  said  may  be 

decreed  to  have  sued  forth  the  said  attachment  and  obtained  the 
said  judgment  therein  fraudulently  as  against  your  orator,  and 
that  an  account  be  taken  of  the  value  of  your  orator's  interest  as 
heir  of  his  said  father  in  the  said  land  and  premises  so  conveyed 
as  aforesaid  to  the  said  ,  and  that  said  may  be 

declared  to  have  been  trustee  of  the  said  estate  of  your  orator  in 
said  lands  for  the  use  of  your  orator  and  be  decreed  as  such 
trustee  to  account  to  your  orator  for  such  value  thereof,  or  at 
least  for  such  proportion  of  said  purchase- money  paid  by  said 
therefor  as  your  orator,  if  he  had  joined  in  said  deed, 
would  have  been  entitled  to,  and  that  your  orator  may  have 
such  other  and  further  relief  in  the  premises  as  to  your  Honor 
shall  seem  meet  and  agreeable  to  equity  and  good  conscience. 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
unto  your  orator  the  state's  writ  of  subpoena,  &c. 

And  your  orator  will  ever  pray,  &c. 

[Signature  of  solicitor  and  counsel.) 

Bill  praying  the  cancellation  of  a  bond  and  mort- 
gage and  for  injunction,  &c.(a) 

In  Chancery  of  New  Jersey. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

Complaining,  showeth  unto  your  Honor  your  orator,  , 

of  the  city  of  ,  in  the  county  of  and  State  of  , 

that  on  or  about  the  day  of  ,  in  the  year  of  our 

Lord  eighteen  hundred  and  ,  your  orator  was  seized  of  an 

estate  of  inheritance  in  fee  simple  of  and  in  the  following- de- 
scribed   lot  of  land  and   premises,  situate  in  the  township  of 

(a)  The  court   lias  the   power   to  fence    at    law   against    the    writing, 

order  a  bond  or  other  instrument  to  Cornish  v.  Bryan,  2  Stock.  146 ;  Mon- 

be  delivered  up  to  be  canceled  and  mouth  Ins.  Co.  v.  Hutchinson,  6  C.  E. 

the  court  may  properly  exercise  the  Gr.  107.    An  assignee  of  a  bond  takes 

power,  although   the  grounds   upon  it   subject  to  all   the  equities  which 

which  the  jurisdiction  of  the  court  is  existed  at  the  time  of  the  assignment 

invoked   may  constitute  a  valid   de-  between  the  obligor  and  obligee.  Ibid. 


BILLS   FOR   RELIEF,  ETC.  567 

,  in   the  county  of  and   State  of  New  Jersey, 

bounded  as  follows,  to  wit,  {describe  lands  and  make  proffert  of 
deed,)  granted  and  conveyed  to  the  said  (your  orator),  as 

in  and  by  the  said  deed  of  conveyance,  duly  executed,  acknowl- 
edged and  recorded,  and  now  in  the  custody  and  possession  of 
your  orator,  and  ready  to  be  produced  and  proven  when  and 
where  this  honorable  court  may  direct,  will,  upon  reference  being 
thereunto  had,  more  fully  and  at  large  appear,  and  to  which, 
when  produced,  your  orator  for  greater  certainty  prays  leave  to 
refer,  if  it  shall  be  necessary  so  to  do. 

And  your  orator  further  shows  unto  your  Honor,  that  on  or 
about  the  said  day  of  ,  in  the  year  of  our  Lord  last 

aforesaid,  one  ,  then  of  the  city  of  ,  in  the  State  of 

aforesaid,  was  engaged  in  the  business  of  vending  tickets 
entitling,  or  purporting  to  entitle,  the  holders  thereof  to  carriage, 
passage  and  conveyance  from  the  city  of  ,  in  the  State  of 

,  to  the  city  of  ,  in  the  State  of  ,  represent- 

ing and  holding  himself  out  to  be  the  duly  accredited  and 
authorized  agent  of  the  owners  and  proprietors  of  certain  lines 
of  steamships  and  other  conveyances  for  the  conveyance  of  pas- 
sengers between  the  cities  of  and  aforesaid. 

And  your  orator  further  showeth  unto  your  Honor,  that  on 
the  same  day  and  year  last  aforesaid,  your  orator  was  desirous 
to  secure  a  passage  upon  one  of  the  lines  of  steamships  and  other 
conveyances  from  the  city  of  to  the  city  of  afore- 

said, and  fully  intended  and  was  desirous  of  going  in  person 
from  said  city  of  to  the  said  city  of  ;  and  to  that 

end  and  with  that   intention  your  orator  applied  to  the  said 

,  for  the  purpose  of  purchasing  a  ticket  of  passage  from 
the  said  ,  to  entitle  your  orator,  as  the  holder  thereof,  to 

carriage,  passage  and  conveyance,  by  one  of  the  lines  of  steam- 
ships and  other  conveyances,  from  the  city  of  to  the  city 
of  aforesaid,  by  one  of  the  lines  whereof  said  claimed 
to  be  an  agent. 

And  your  orator  further  shows  unto  your  Honor,  that  the 
said  demanded  of  your  orator  as  the  price,  purchase- 

money  and  consideration  of  the  ticket  of  passage  aforesaid  in  the 
lines  aforesaid,  for  your  orator's  proposed  conveyance  or  passage 


568  FORMS   OF   PLEADINGS. 

as  aforesaid,  the  sum  of  dollars;  and  that  your  oratory- 

being  unprovided  with  money  or  cash  to  that  amount,  proposed 
to  the  said  to  execute  and  deliver  to  him,  the  said  ^ 

a  bond  of  your  orator,  conditioned  for  the  payment  of 
dollars,  to  be  secured  by  a  mortgage  from  your  orator  and  wife 
to  the  said  upon  the  premises  aforesaid. 

And  your  orator  further  showeth  unto  your  Honor,  that  on 
the  same  day  and  year  last  aforesaid,  the  said  refused  to 

accept  from  your  orator  the  bond  and  mortgage  to  secure  the 
sum  aforesaid  of  dollars,  but  proposed  to  your  orator  that 

he,  the  said  ,  would  sell  to  your  orator  a  ticket  of  passage, 

for  the  carriage,  passage  and  conveyance  of  your  orator  by  the 
lines  of  steamships  and  other  conveyances  aforesaid  from  the  city 
of  to  the  city  of  aforesaid,  at  the  price  and  of  the 

value  of  dollars,  and  to  give  to  your  orator  the  sum  of 

dollars  in  money,  and  an  acknowledgment  of  the  receipt 
by  him,  the  said  ,  from  your  orator  of  the  further  sum  of 

dollars,  and  that  your  orator  should  execute  and  deliver 
in  turn  to  the  said  your  orator's  bond  in  the  penal  sum  of 

dollars,  conditioned  for  the  payment  of  dollars,, 

viz.,  dollars  in  one  year  from  the  date  thereof,  with  inter- 

est, and  dollars  in  two  years  from  the  date  thereof,  with 

the  interest;  and  an  indenture  of  mortgage  from  your  orator 
and  his  wife  upon  the  lot  of  land  and  premises  hereinbefore  set 
forth  and  described,  to  him,  the  said  ,  to  secure  the  pay- 

ment  of  the  said  sum  of  money  mentioned  in  the  condition  of 
the  said  bond ;  and  the  said  represented  to  your  orator, 

that  in  case  your  orator  executed  and  delivered  to  him,  the  said 

,  the  bond  and  mortgage  aforesaid,  that  the  said  lot  of 
land  and  premises  would  only  be  encumbered  for  the  amount  of 

dollars  by  reason  of  the  mortgage  aforesaid,  and  that 
your  orator  would  only  be  held  and  bound  for  the  payment  of 

dollars  by  reason  of  the  bond  aforesaid,  and  that  the 
receipt  of  him,  the  said  ,  to  your  orator  would  be  a  suffi- 

cient receipt  and  discharge  for  the  remaining  sum  of  dol- 

lars ;  and  that  he,  the  said  ,  wished  the  nominal  amount 

of  said  bond  and  mortgage  to  be  dollars,  for  the  conveni- 


BILLS   FOR   RELIEF,  ETC.  569^' 

ence  of  his  business  arraDgements,  and  would  not  furnish  your 
orator  said  passage  ticket  on  any  other  conditions. 

And  your  orator  further  shows  unto  your  Honor,  that,  con- 
fiding in  the  representations  of  the  said  ,  and  fully  be- 
lieving them  to  be  true,  your  orator  did,  on  the  said  day 
of  ,  in  the  year  of  our  Lord  eighteen  hundred  and  , 
execute  and  deliver  unto  the  said  his  certain  bond  or 
obligation,  bearing  date  the  day  and  year  last  aforesaid,  in  the 
penal  sum  of  dollars,  conditioned  for  the  payment  to  the 
said  ,  his  certain  attorney,  executors,  administrators  or 
assigns,  by  your  orator,  his  heirs,  executors  or  administrators,  of 
the  sum  of  dollars,  dollars  in  one  year  from  the 
date  thereof  and  dollars  in  two  years  from  the  date 
thereof,  together  with  lawful  interest ;  and  to  secure  the  pay- 
ment of  the  principal  sum  of  money  mentioned  in  the  condition 
of  said  bond,  together  with  the  lawful  interest,  according  to  the 
condition  of  said  bond,  your  orator  did,  together  with  , 
his  wife,  execute  and  deliver  to  the  said  ,  his  heirs  and 
assigns,  a  certain  deed  or  indenture  of  mortgage  upon  and  cov- 
ering the  lot  of  land  and  premises  hereinbefore  described ;  and 
your  orator  received,  from  the  said  ,  on  the  same  day  and 
year  last  aforesaid,  as  the  sole  and  only  consideration  for  the 
execution  and  delivery  of  said  bond  and  mortgage,  the  sum  of 

dollars  in  money,  together  with  a  receipt  signed  by  the 
said  for  the  sum  of  dollars,  and  a  memorandum  in 

writing  that  he  would  furnish  to  your  orator  in  the  city  of 
a  passage  ticket  for  the  passage,  carriage  and  conveyance  of  your 
orator  from  the  city  of  to  the  city  of  j  by  a  steam- 

ship to  sail  or  steam  from  the  city  of  aforesaid  on  the 

day  of  ,  in  the  year  of  our  Lord  eighteen  hundred 

and 

And  your  orator  further  shows  unto  your  Honor,  that  the 
said  indenture  of  mortgage  was  afterwards,  to  wit,  on  the 
day  of  ,  in  the  year  of  our  Lord  eighteen  hundred  and 

,  received  and  recorded  in  the  office  of  the  clerk  of  the 
county  of  ,  by  ,  then  clerk  of  said  county  of 

And   your  orator  further  shows  unto  your  Honor,  that   in 
pursuance  of  the  arrangement  made  between  your  orator  and  the 


570  FORMS   OF   PLEADINGS. 

said  ,  on  the  said  day  of  ,  in  the  year  last 

aforesaid,  your  orator  did  proceed  to  the  city  of  prior  to 

the  said  day  of  aforesaid,  the  day  on  which  your 

orator  was  to  take  passage  by  the  steamship  aforesaid,  in  the  full 
faith,  confidence  and  belief  that  the  said  would  provide 

and  furnish  to  your  orator,  in  accordance  with  his  agreement 
aforesaid,  a  passage  ticket,  for  the  carriage,  passage  and  convey- 
ance of  your  orator  as  aforesaid,  from  the  city  of  to  the 
city  of  ;  but,  although  your  orator  remained  in  the  city 
of  long  after  the  said  day  of  aforesaid,  and 
made  frequent  demand  upon  the  said  to  be  furnished  with 
the  passage  ticket  to  entitle  your  orator  to  the  passage,  carriage 
and  conveyance  aforesaid,  yet  neither  the  said  ,  nor  any 
other  person  or  persons  in  his  behalf,  at  that  time  or  before  or 
since  that  time,  would  furnish,  provide  or  deliver  to  your  orator 
such  passage  ticket  as  aforesaid,  but  wholly  failed,  neglected  and 
refused  so  to  do. 

And   your  orator  further  showeth    unto   your  Honor,  that 
afterward,  to  wit,  on  the  day  of  ,  in  the  year  of  our 

Lord  eighteen  hundred  and  ,  your  orator  called  upon  the 

said  ,  and  your  orator  paid  back  to  the  said  ,  at  the 

said  request,  the  said  sum  of  dollars,  so  as  aforesaid 

received  from  the  said  by  your  orator,  and  upon  like 

request  your  orator  surrendered  and  delivered  up  to  the  said 
the  memorandum  agreeing,  on  the  part  of  said  ,  to 

furnish  your  orator  the  passage  ticket  aforesaid  in  manner  afore- 
said, as  hereinbefore  in  that  behalf  set  forth,  and  upon  like 
request  your  orator  surrendered  and  delivered  up  to  said 
the  receipt  signed  by  the  said  and  by  him  theretofore  de- 

livered to  your  orator,  which  said  money,  memorandum  and 
receipt  constituted  and  were  the  sole,  only  and  whole  consider- 
ation which  your  orator  had  received  from  the  said  ,  or 
any  other  person,  for  the  bond  and  mortgage  so  as  aforesaid 
executed  and  delivered  by  your  orator  to  the  said  .  And 
the  said  received  from  your  orator  the  said  sum  of 
dollars  and  the  memorandum  and  receipt  aforesaid,  and  your 
orator  demanded  of  the  said             that  he  should  surrender  and 


BILLS   FOR   RELIEF,  ETC.  571 

deliver  up  to  your  orator  the  bond  and  mortgage  so  as  aforesaid 
executed  and  delivered  from  your  orator  to  the  said  ,  and 

that  he  would  cancel  and  make  void  the  same. 

And  your  orator  further  shows  unto  your  Honor,  that  the 
said  agreed  and  consented  with  and  to  your  orator  that 

he,  the  said  ,  would  surrender  and  deliver  up  to  your 

orator,  and  would  cancel  and  make  void  the  said  bond  and 
mortgage  so  as  aforesaid  executed  and  delivered  to  him  by  your 
orator,  but  represented  and  alleged  to  your  orator  that  the  said 
bond  and  mortgage  were  not  then  conveniently  at  hand  or  in  the 
actual  possession  of  him,  the  said  ;  and  he,  the  said  , 

thereupon  executed  and  delivered  to  your  orator,  and  persuaded 
and  prevailed  on  your  orator  to  accept  as  temporary  security  for 
the  surrender  and  delivery  of  said  bond  and  mortgage,  a  bond 
executed  by  the  said  to  your  orator  in  the  penal  sum  of 

dollars,  conditioned  for  the  payment  of  the  installments 
and  interest  mentioned  in  the  condition  of  the  aforesaid  bond 
executed  by  your  orator,  and  acknowledging  the  receipt  of  the 
money  thereby  secured  to  said  ,  and  covenanting  to  make 

good  all  payments  on  account  thereof  and  to  take  up  and  release 
to  your  orator  the  said  bond  and  mortgage  as  soon  as  possible ; 
and  at  the  same  time  the  said  delivered  to  your  orator  a 

receipt  for  said  sum  of  dollars,  and  an  undertaking  to  pay 

off  said  installments  on  your  orator's  said  bond  as  they  came 
due,  as  in  and  by  said  bond  and  receipt  when  produced  will 
appear ;  and  your  orator,  reposing  confidence  in  the  allegation 
and  representation  of  the  said  that  he  would  speedily 

surrender  to  your  orator  your  orator's  said  bond  and  mortgage, 
accepted  the  said  bond  and  receipt  from  said  as  tempo- 

rary security  for  the  surrender  of  your  orator's  said  bond  and 
mortgage. 

And  your  orator  further  showeth  unto  your  Honor,  that  in 
the  said  month  of  ,  in  the  year  of  our  Lord  eighteen  hun- 

dred and  ,  and  between  the  day  of  said  month  of 

,  the  day  of  the  date  of  the  "said  bond  and  mortgage,  and 
the  day  of  said  month  of  ,  the  day  of  the  date  of 

the  registry  thereof,  as  your  orator  has  been  informed  and  verily 
believes  to  be  true,  the  said  assigned  and  transferred  the 


672  FORMS   OF   PLEADINGS. 

said  bond  and  mortgage  so  as  aforesaid  executed  and  delivered 
by  your  orator  to  the  said  to  one  ,  of  the  city  of 

,  in  the  county  of  and  State  of  New  Jersey,  who 

now  holds  and  claims  to  be  the  owner  and  possessor  of  the 
same,  and  entitled,  as  such  assignee,  to  all  the  moneys  due  and 
to  grow  due  thereon,  and  to  all  the  benefits  to  be  derived  there- 
from; but  whether  said  assignment  and  transfer  were  bona  fide, 
or  whether  any  and  what  consideration  passed  therefor,  your 
orator  is  unable  to  state,  and  therefore  leaves  the  said  to 

make  such  statement  and  proof  thereof  as  this  honorable  court 
may  direct. 

And  your  orator  further  shows  unto  your  Honor,  that  he  has 
lately  discovered  that  the  said  never  was  a  duly  authorized 

and  accredited  agent  of  any  lines  of  steamships  or  other  convey- 
ances for  the  carriage  of  passengers  from  the  city  of  to  the 
city  of  ,  and  that  he  had  no  authority  to  sell  or  dispose  of 
passage  tickets  by  any  such  lines  or  conveyances,  from  the 
owners  thereof  or  from  any  other  person  authorized  therefor; 
and  that  by  artifice  and  fraud,  and  by  the  false  and  fraudulent 
representations  of  the  said  ,  your  orator  was  induced  to 
execute  and  deliver  unto  the  said  the  bond  and  mortgage 
aforesaid,  and  that  your  orator  has  received  from  said 
no  consideration  therefor. 

And  your  orator  further  showeth  unto  your  Honor,  that  hav- 
ing discovered  such  fraud  and  imposition  as  aforesaid,  your 
orator,  by  himself  and  his  agents,  has  frequently  and  in  a 
friendly  manner  applied   to   the  said  and  ,  and 

requested  them  to  deliver  up  to  your  orator  the  said  bond  and 
mortgage  so  as  aforesaid  executed  and  delivered  by  your  orator 
to  the  said  ,  that  the  same  might  be  canceled  and  made 

void. 

And  your  orator  further  showeth  unto  your  Honor,  that  your 
orator  was,  at  the  time  of  the  transactions  hereinbefore  set  forth,, 
unskilled  in  and  unacquainted  with  the  forms  of  ordinary  busi- 
ness, and  was  especially  ignorant  of  the  effect  and  nature  of  the 
bond  and  mortgage  so  as  aforesaid  executed  and  delivered  to  the 
said  by  your  orator ;  and  that  your  orator  verily  believed 

that  the  said  bond  and  mortgage  would  constitute  a  legal  claim 


BILLS   FOK   EELIEE,  ETC.  573 

and  demand  upon  your  orator  and  a  legal  encumbrance  upon  the 
premises  in  said  mortgage  described  to  the  amount  of  dol- 

lars only,  and  that  said  receipt  was  a  sufficient  release  and 

discharge  for  the  remaining  sum  of  dollars  ;  and  that  your 

orator  verily  believed  that  upon  his  surrendering  to  said 
the  said  sum  of  dollars,  and  the  memorandum  agreement 

for  the  passage  ticket  and  the  receipt  as  hereinbefore  set  forth, 
that  he,  the  said  ,  would  speedily  surrender  to  your  orator 

your  orator's  said  indenture  of  mortgage,  and  that  until  such 
surrender  the  bond,  covenants  and  receipt  so  as  aforesaid  given 
by  the  said  to  your  orator  would  be  a  sufficient  bar  and 

release  as  against  your  orator's  said  bond  and  indenture  of  mort- 
gage ;  and  that  your  orator,  being  imposed  upon  by  the  appear- 
ance and  manners  of  the  said  ,  did  not  at  all  suppose  that 
said  would  injure  or  deceive  your  orator,  but  placed  im- 
plicit confidence  in  him,  the  said  ;  and  that  during  all  the 
transactions  aforesaid,  your  orator  was  entirely  without  the  aid, 
advice  or  assistance  of  counsel,  or  of  any  person  or  persons  skilled 
in  the  conduct  of  business,  and  was  accompanied  and  advised 
only  by  persons  of  color  equally  ignorant  and  unskilled  in  busi- 
ness with  your  orator. 

And  your  orator  further  showeth  unto  your  Honor,  that  he  is 
advised  by  his  counsel  that  the  said  bond  or  obligation  so  as 
aforesaid  executed  by  your  orator,  and  the  said  indenture  of 
mortgage  so  as  aforesaid  executed  by  your  orator  and  wife,  and 
delivered  to  the  said  and  by  him  assigned  to  the  said 

as  aforesaid,  are  fraudulent  and  null  and  void,  and  ought  to  be 
delivered  up  to  your  orator  to  be  canceled  and  vacated,  no  con- 
sideration having  been  paid  therefor  by  the  said  to  your 
orator,  or  received  by  your  orator  from  any  other  person  or  per- 
sons ;  and  that  such  consideration,  if  any,  was  received  by  your 
orator  under  the  influence  of  the  false  and  fraudulent  representa- 
tions of  the  said  ,  and  that  such  consideration  was  paid 
and  the  gaid  bond  and  mortgage  executed  in  pursuance  and  ful- 
fillment of  a  usurious  and  fraudulent  contract  between  your 
orator  and  the  said 

And  your  orator  well  hoped  that  the  said  and 

would  have  complied  with  such  reasonable  requests  of  your 


574  FORMS   OF   PLEADINGS. 

orator,  and  would  have  surrendered  up  and  delivered  to  your 
orator  for  cancellation  the  bond  and  mortgage  aforesaid ;  but 
now  so  it  is,  may  it  please  your  Honor,  that  the  said  and 

not  only  refuse  to  surrender  up  to  your  orator  the  said 
securities  for  cancellation,  but  the  said  insists  upon  all  the 

benefits  of  the  aforesaid  bond  and  mortgage,  and  threatens  that 
in  case  the  installments,  or  either  of  them,  named  in  the  condi- 
tion of  the  said  bond  are  not  paid  by  your  orator  on  the  day  and 
in  the  manner  in  said  condition  specified,  he  will  file  a  bill  in 
this  honorable  court  for  the  foreclosure  of  said  mortgage ;  and 
the  said  defendants  sometimes  pretend  and  give  out  in  speeches, 
that  the  said  paid  to  your  orator  the  sum  of  dollars 

as  full  consideration  for  the  execution  and  delivery  of  the  bond 
and  mortgage  aforesaid ;  and  that  the  receipt  for  dollars 

and  memorandum  agreement  for  passage  ticket  hereinbefore  set 
forth  formed  no  part  of  the  consideration  money  or  other  con- 
sideration for  said  bond  and  mortgage ;  and  that  the  said 
did  deliver  to  your  orator  a  passage  ticket  entitling  your  orator 
to  passage,  conveyance  and  carriage  from  to  ,  in 

fulfillment  of  his  engagement  to  that  eifect ;  and  that  the  said 
never  did  receive  from  your  orator  the  said  sum  of 
dollars,  and  the  memorandum  and  receipt  hereinbefore 
stated,  and  execute  and  deliver  to  your  orator  the  aforesaid  bond 
and  covenants  and  receipt ;  and  never  did  agree  to  surrender  to 
your  orator  for  cancellation  your  orator's  bond  and  mortgage 
aforesaid ;  and  that  your  orator,  in  person  or  by  agent,  never  did 
demand  of  the  said  the  surrender  of  your  orator's  said 

bond  and  mortgage  for  the  purpose  of  cancellation,  whereas  your 
orator  expressly  charges  the  contrary  thereof  to  be  true;  all 
which  actings  and  pretences  of  the  said  defendants  are  contrary 
to  equity  and  good  conscience,  and  tend  to  the  manifest  wrong 
and  injury  of  your  orator. 

In  tender  consideration  whereof,  and  forasmuch  as  your  orator 
is  without  adequate  remedy  in  the  premises  by  the  strict  rules  of 
the  common  law,  and  without  the  aid  and  intervention  of  this 
honorable  court,  where  matters  of  this  nature  are  properly  cog- 
nizable and  relievable  :  To  the  end,  therefore,  that  the  said  de- 
fendants, and  ,  may,  upon  their  several  and  respec- 


BILLS   FOR   RELIEF,  ETC.  575 

tive  corporal  oaths  or  affirmatioDs,  full,  true,  perfect  and 
distinct  answer  make  to  all  and  every  the  matters  aforesaid,  and 
that  as  fully  and  particularly  as  if  the  same  were  here  again 
repeated  and  they  thereto  particularly  interrogated,  paragraph 
by  paragraph;  and  that  they  may  answer  and  declare  to  this 
honorable  court  whether  any  and  what  consideration  was  paid 
by  the  said  to  your  orator  at  and  before  or  subsequent  to 

the  execution  and  delivery  of  your  orator's  said  bond  and  in- 
denture of  mortgage,  as  a  consideration  therefor.  And  if  any 
consideration  was  paid  by  the  said  ,  or  by  any  other  per- 

son in  his  behalf,  in  what  the  said  consideration  consisted, 
whether  in  money,  cash,  notes,  bonds,  receipts,  mortgages,  tickets 
for  passage  from  to  ,  lands,  securities  or  any  other 

valuable  matter  or  thing  whatsoever.  And  whether  the  con- 
tract or  agreement  entered  into  between  your  orator  and  the 
said  ,  and  in  pursuance  of  which  the  said  bond  and  mort- 

gage were  executed  and  delivered  by  your  orator  to  the  said 

,  was  not  fraudulent  and  usurious  on  the  part  of  the  said 

,  and  what  was  the  contract  or  agreement  entered  into 
between  them.  And  that  the  said  bond  or  obligation  so  as 
aforesaid  executed  and   delivered   by  your  orator  to  the  said 

,  and  the  indenture  of  mortgage  so  as  aforesaid  executed 
and  delivered  by  your  orator  and  ,  his  wife,  to  the  said 

,  may  be  declared  null  and  void,  and  that  the  same  may 
be  delivered  up  to  be  canceled ;  and  that  in  the  meantime  the 
said  defendant,  ,  may  be  restrained  by  the  order  and  in- 

junction of  this  honorable  court  from  commencing  or  prosecuting 
any  action  at  law  against  your  orator  upon  the  said  securities  or 
either  of  them,  or  from  filing  a  bill  for  the  foreclosure  of  said 
indenture  of  mortgage  in  this  honorable  court,  or  from  com- 
mencing any  other  proceedings  thereon,  or  from  assigning  and 
transferring  the  said  securities  or  either  of  them  to  any  other 
person  or  persons,  or  from  in  any  other  manner  in  anywise  part- 
ing with  the  custody  and  possession  of  the  same ;  and  that  your 
orator  may  have  such  further  or  other  relief  in  the  premises  as 
the  nature  and  circumstances  of  the  case  may  require,  and  to 
your  Honor  shall  seem  meet  and  agreeable  to  equity  and  good 
conscience. 


576  FORMS   OF   PLEADINGS. 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
unto  your  orator,  not  only  the  state's  writ  of  injunction  issuing 
out  of  and  under  the  seal  of  this  honorable  court,  to  be  directed 
to  the  said  ,  restraining  and  enjoining  him  from  com- 

mencing or  prosecuting  any  action  at  law  against  your  orator 
upon  the  said  bond  or  obligation  and  indenture  of  mortgage 
executed  by  your  orator  and  ,  his  wife,  to  the  said  , 

on  the  day  of  ,  in  the  year  of  our  Lord  eighteen 

hundred  and  ,  or  from  filing  a  bill  for  the  foreclosure  of 

said  indenture  of  mortgage,  or  from  commencing  any  other  pro- 
ceedings thereon,  or  from  assigning  and  transferring  said  bond 
and  indenture  of  mortgage  to  any  other  person  or  persons,  or 
from  in  any  other  manner  in  anywise  parting  with  the  custody 
and  possession  of  the  same,  but  also  the  state's  writ  of  subpcena, 
issuing  out  of  and  under  the  seal  of  this  honorable  court,  to  be 
directed  to  the  said  and  ,  therein  and  thereby  com- 

manding them,  on  a  certain  day  and  under  a  certain  penalty 
therein  to  be  expressed,  personally  to  be  any  appear  before  your 
Honor  in  this  honorable  court,  then  and  there  to  answer  the 
premises,  and  to  stand  to,  abide  and  perform  such  decree  therein 
as  to  your  Honor  shall  seem  meet,  &c. 

And  your  orator,  as  in  duty  bound,  will  ever  pray,  &c. 

{Signature  of  solicitor  and  ooun^el.) 

Bill  to  compel  payment  of  the  excess  of  the  mort- 
gage debt  above  the  net  proceeds  of  sale.(a) 

(Address.) 

Set  forth  the  bond  and  mortgage  as  in  an  ordinary  foreclosure 
bill  and  proceed,  And  your  orator  further  shows,  that  after- 
wards, on  or  about  the  day  of  ,  eighteen  hundred 
and  ,  the  said  and  ,  his  wife,  did  execute  a 
deed  of  conveyance,  under  their  hands  and  seals,  to  one  , 

(a)  A  suit  by  bill  to  compel  pur-  eery.      Equity    had    jurisdiction    in 

chasers  who,  by   their   conveyances,  such  cases  before  the  passage  of  the 

have  assumed  payment  of  a  mortgage,  act  {Rev.,  "Chancery,"  'i  76,)  on  the 

to  pay  the  deficiency  of  the  proceeds  principle  of  subrogation.     Pruden  v. 

of  sale  to  pay  the  mortgage  debt,  is  Williams,  11  C.  E.  Gr.  210. 
maintainable  against  them  in  chan- 


BILLS   FOR   RELIEF,  ETC.  677 

in  and  by  which  deed  of  conveyance  it  was  among  other  things 
witnessed,  that  the  said  and  wife  did,  in  consideration  of 

the  sum  of  dollars,  sell  and  convey  the  said  mortgaged 

premises  unto  the  said  ,  his  heirs  and  assigns ;  and  it  was 

further  witnessed  and  stipulated,  in  and  by  said  deed  of  convey- 
ance, that  said  lands  were  conveyed  subject  to  the  lien  and  en- 
cumbrance of  the  said  mortgage  so  given  by  said  and  wife 
to  your  orator,  the  said  ,  and  that  the  said  assumed 
the  payment  of  the  said  mortgage  and  agreed  to  pay  oflF  and  dis- 
charge the  same  in  part  payment  of  the  consideration  money  in 
the  said  deed  of  conveyance  mentioned ;  whicn  deed  of  convey- 
ance was,  on  the  day  of  ,  eighteen  hundred  and 
,  delivered  to  and  accepted  by  the  said  ,  by  virtue 
of  which  stipulation  and  agreement  so  contained  in  said  deed  of 
conveyance,  and  the  acceptance  thereof  by  said  ,  he,  the 
said  ,  became  liable  to  pay  to  the  said  and  to  your 
orator  the  amount  of  the  principal  and  interest  due  and  to  grow 
due  on  his  mortgage  as  aforesaid,  when  the  same  should  become 
due,  as  in  and  by  the  said  deed  of  conveyance  from  the  said 
and  wife  to  the  said  ,  or  the  record  thereof  now  in 
the  possession  of  your  orator,  and  ready  to  be  produced  and 
proven,  as  this  court  shall  direct,  reference  being  thereunto  had, 
will  more  fully  appear  {and  in  same  manner  set  forth  the  several 
conveyances.) 

And  your  orator  further  shows,  that  on  or  about  the 
day  of  ,  eighteen  hundred  and  ,  your  orator  filed 

his  bill  of  complaint  in  this  honorable  court  for  the  foreclosure 
and  sale  of  said  premises  under  his  said  mortgage,  setting  out 
his  said  mortgage  upon  said  land  and  premises,  and  the  bond 
"which  the  same  was  given  to  secure. 

And  your  orator  further  shows,  that  such  proceedings  were 
had  on  his  said  bill  of  complaint  that  afterwards,  on  or  about 
the  day  of  ,  eighteen  hundred  and  ,  a  decree 

of  foreclosure  was  made  by  your  Honor  in  this  court,  by  which 
it  was  ordered  and  decreed  that  your  orator  was  entitled  to  have 
the  sum  of  dollars  and  cents,  together  with  lawful 

interest  thereon  from  the  said  day  of  ,  eighteen 

hundred  and  ,  being  the  amount  then  found  to  be  due  on 

2m 


578  FORMS   OF   PLEADINGS. 

his  said  mortgage,  together  with  the  further  sum  of  dollars 

and  cents  of  costs,  with  lawful  interest  thereon  from  the 

day  of  ,  eighteen  hundred  and  ,  to  be  paid 

and  satisfied  out  of  the  proceeds  of  the  sale  of  the  said  mortgaged 
premises ;  and  that  the  said  mortgaged  premises  should  be  sold 
to  pay  and  satisfy  the  said  several  amounts,  and  that  a  writ  of 
fieri  facias  should  for  that  purpose  issue  out  of  this  honorable 
court,  directed  to  the  sheriff  of  the  county  of  ,  commanding 

him  to  make  sale  of  said  premises  to  pay  and  satisfy  the  said 
several  sums  accordingly. 

And  your  orator  further  shows,  that  afterwards,  on  or  about 
the  day  of  ,  eighteen  hundred  and  ,  a  writ 

of  execution  on  said  decree  was  duly  issued  out  of  this  court, 
directed  and  delivered  to  the  sheriff  of  the  county  of  , 

commanding  him  to  make  sale  according  to  law  of  said  mort- 
gaged premises,  to  pay  and  satisfy  the  said  several  sums  of 
money  in  accordance  with  the  terms  of  said  decree. 

And  your  orator  further  shows,  that  the  said  sheriff  of  the 
county  of  duly  advertised  the  said  mortgaged  premises, 

by  virtue  of  the  said  writ  of  execution,  for  sale  at  the  court- 
house, in  the  city  of  ,  on  ,  the  day  of  , 
at  o'clock  in  the  afternoon  of  that  day,  which  sale  was 
adjourned  from  time  to  time  to  the  day  of  , 
eighteen  hundred  and  ,  at  the  court-house  in  the  said 
city  of  ,  on  which  said  last- mentioned  day  the  said  sheriff 
struck  off  and  sold  the  said  mortgaged  premises  to  one  , 
he  being  the  highest  bidder  for  the  same,  for  the  sum  of 
dollars ;  and  that  the  said  sheriff  has  made  and  executed  a  deed 
of  conveyance  of  said  land  and  premises  to  the  said  , 
under  and  by  virtue  of  said  sale,  for  the  said  consideration  of 
dollars,  which  said  deed  has  been  delivered  to  and 
accepted  by  the  said  ,  and  is  duly  recorded  in  the  office  of 
the  clerk  of  said  county  of  ,  in  Book  of  Deeds  for 
said  county,  on  page             ,  &c. 

And  your  orator  further  shows,  that  it  appears  by  the  official 
statement  of  said  sheriff,  filed  in  this  court,  that  he  sold  said 
premises  to  said  ,  for  the  said  sum  of  dollars,  and 

that  he  retained  the  sum  of  dollars  for  his  execution  fees. 


BILLS   FOR   RELIEF,  ETC.  579 

and  that  he  paid  to  the  solicitors  of  your  orator  the  sum  of 
dollars  and  cents,  and  that  the  solicitors  of  your 

orator  retained  from  the  last-mentioned  sum  of  dollars 

and  cents  the  taxed  costs  of  your  orator  in  said  cause, 

together  with  interest  thereon,  amounting  to  the  sum  of 
dollars  and  cents,  leaving  the  sum  of  dollars  and 

cents  to  be  credited  upon  and  deducted  from  the  sum 
decreed  to  be  due  to  your  orator  in  said  foreclosure  suit. 

And  your  orator  charges  that,  by  virtue  of  the  covenants  to 
pay  your  orator's  said  mortgage,  contained  in  the  several  deeds 
of  conveyance  above  mentioned  and  set  forth,  to  wit,(a)  the  deed 
from  (here  set  forth  the  several  deeds  ;)  the  said  and 

are  severally  liable  in  equity  to  pay  the  amount  of  principal 
and  interest  due  on  your  orator's  said  mortgage,  and  that  your 
orator  has  applied  to  the  said  and  and  requested 

them  and  each  of  them  to  pay  to  your  orator  the  amount  of  the 
principal  and  interest  so  remaining  due  as  aforesaid  to  your 
orator  on  his  said  bond  and  mortgage,  and  that  they  have 
wholly  refused  so  to  do. 

Wherefore  your  orator  prays  the  aid  of  this  court  in  the 
premises :    To  the  end,  therefore,  that  the  said  and 

may  be  decreed  and  declared  to  be  severally  liable  to  pay  to 
your  orator  the  principal  and  interest  moneys  so  due  to  him  on 
his  said  bond  and  mortgage,  by  reason  of  their  having  severally 
accepted  the  said  several  deeds  of  conveyance  of  the  said  mort- 
gaged premises,  so  made  to  them  successively,  as  aforesaid,  and 
so  containing,  as  aforesaid,  clauses  in  and  by  which  they  did 
severally  assume  the  payment  of  said  bond  and  mortgage,  and 

(a)  The  right  of  tlie  mortgagee  to  doctrine   of  courts  of  equity   that   a 

a  personal  decree  for  deficiency  against  creditor  may  have  the  benefit  of  all 

a  subsequent  purchaser,  whose  deed  collateral  obligations  for  the  payment 

contains  such  a  stipulation,  does  not  of  the  debt  which  a  person  standing 

result  from  any  fixed  or  vested  right  in  the  situation  of  surety  for  others 

in  the  mortgagee,  arising  either  from  holds  for  his  indemnity,  and  that  he 

the  acceptance  of  the  conveyance  of  may  proceed  directly  against  the  per- 

the  mortgaged  premises  by  the  grantee  son  ultimately  liable,  in  order  to  avoid 

or  from   his   obligation    to   pay   the  circuity  of  action.    Crotvell  v.  Hospital 

mortgage  debt  as  between  liimself  and  of  St.  Barnabas,  12  C.  E.  Or.  650. 
his  grantor.     It  rests  merely  on  the 


580  FORMS   OP   PLEADINGS. 

did  agree  to  pay  the  same,  and  that  such  liability  may  be 
enforced  by  the  decree  of  this  court,  by  ordering  and  decreeing 
the  said  and  ,  severally  and  in  such   order  of 

priority  as  between  themselves  as  may  be  equitable  and  just,  to 
pay  unto  your  orator  the  principal  and  interest  moneys  due  and 
to  grow  due,  unto  your  orator  on  his  said  bond  and  mortgage, 
together  with  his  costs  of  suit,  and  that  your  orator  may  have 
such  other  or  further  relief  in  the  premises  as  may  be  agree- 
able to  equity  and  good  conscience. 
{Prayer  for  subpoena.) 

{Signature  of  solicitor  and  counsel.) 

Bill  to  enforce  the  personal  liability  of  the  direct- 
ors of  a  corporation  for  their  misfeasance  as  such 

directors.(a) 

{Address.) 

Complaining,  showeth  unto  your  Honor,  your  orator,  the 
,  of  the  city  of  ;  that  your  orator  is  a  corpora- 

tion duly  organized  and  incorporated  under  the  provisions  of 
the  act  entitled  "An  act  to  encourage  the  establishment  of 
mutual    loan    and    building    associations,"   approved  , 

eighteen  hundred  and  ,  and  of  the  several  supplements 

thereto;  that  the  association  of  your  orator  was  created  for 
the  purpose  of  assisting  those  who  were  at  the  time  of  the 
beginning  of  your  orator's  said  association  members  thereof,  or 
who  might  thereafter  become  members  thereof,  in  the  purchase 
of  lots  and  building  thereon  dwelling-houses;  and  that  your 
orator  became  so  organized  and  incorporated  on  or  about  the 
day  of  ,  eighteen  hundred  and  ,  having,  in 

all  things,  complied  with  the  requirements  and  provisions  of  the 
said  act  and  of  the  several  supplements  thereto. 

And  your  orator  further  showeth  unto  your  Honor,  that  by 
virtue  of  the  action  of  your  orator  under  the  said  act,  and  the 

(a)  The  waste  or  misapplication  of  though   it   were    conceded    that    an 

the  funds   of    a   corporation    by   its  adequate  remedy  at  law  exists.     The 

officers  or  agents  authorizes  the  com-  existence  of  such  remedy  at  law  would 

pany  to  resort  to  equity  in  order  to  not  oust  this  court  of  its  jurisdiction, 

compel   such   officers  to  account  for  Citizens'  Loan  Asso.,  &c.,  v.  Lyon,  2 

such  waste  or  breach  of  trust,  even  Stew.  Eq.  110 ;  S.  C,  3  Stew.  Eq.  732. 


BILLS   FOR    RELIEF,  ETC.  581 

several  supplements  thereto,  your  orator  became  and  was  a  body 
politic  and  corporate  in  law,  with  all  the  powers  mentioned  in 
the  first  section  of  the  act  of  the  legislature  of  New  Jersey,  enti- 
tled "An  act  concerning  corporations,"  approved  ,  a.  d. 
eighteen  hundred  and 

And  your  orator  further  showeth  unto  your  Honor,  that  the 
object,  intent  and  purpose  of  the  organization  of  your  orator 
was  the  accumulation  of  funds  by  the  payment  of  monthly 
installments  by  the  members  of  the  said  organization  of  your 
orator,  into  the  treasury  of  your  orator,  and  the  loaning  or 
advancing  of  such  funds  to  the  said  members  of  your  orator's 
said  association,  to  enable  them  to  purchase  lots  of  land  and 
premises  or  dwelling-houses,  and  to  aid  said  members  in  the 
erection  of  dwelling-houses  on  lots  so  purchased ;  and  that  by 
section  of  the  said  act  entitled  "An  act  to  encourage  the 

establishment  of  mutual  loan  and  building  associations," 
approved  ,  eighteen  hundred  and  ,  it  was  enacted, 

that  the  investments  of  associations  established  under  said  last- 
named  act  should  be  made  either  in  loans  to,  or  in  redemption 
of  the  shares  of,  or  in  purchasing  lots  and  erecting  dwellings  for 
the  members,  or  in  all  of  said  modes,  as  the  constitution  of  the 
particular  association  should  provide;  and  by  section  of 

said  last-named  act  it  was  provided  that  all  matters  not  provided 
for  by  said  last-named  act  should  be  regulated  by  the  constitu- 
tion and  by-laws  of  said  associations,  respectively. 

And  your  orator  further  showeth  unto  your  Honor,  that  in 
and  by  the  said  last-named  act  it  was  also  enacted  that  every 
association  created  by  the  said  act  might  adopt  such  form  of 
constitution  as  to  them  should  seem  right  and  proper. 

And  your  orator  further  showeth  unto  your  Honor,  that  in 
pursuance  and  by  virtue  of  the  provisions  of  the  said  last-named 
act,  under  and  by  virtue  of  which  your  orator  was  organized  as 
aforesaid,  the  members  of  the  association  of  your  orator  adopted, 
immediately  after  the  organization  of  your  orator  as  aforesaid, 
a  constitution  for  the  government  of  said  association,  which 
constitution  contained  nothing  repugnant  to  the  constitution  of 
New  Jersey,  or  of  the  United  States ;  and  that  by  article 
of  said  constitution  it  was   provided   that  the  object  of  said 


582  FORMS   OF   PLEADINGS. 

association  was  to  provide  a  means  for  the  regular,  safe  and 
profitable  investment  of  the  savings  of  its  members,  and  by 
these  savings  accumulate  a  fund  for  the  purpose  of  making  loans 
to  stockholders  whereby  they  might  be  enabled  to  build  or  pro- 
vide for  themselves  dwelling-houses  or  to  purchase  building  lots 
or  other  real  property. 

And  your  orator  further  showeth  unto  your  Honor,  that  by- 
laws were  also  adopted  by  the  members  of  said  association  of 
your  orator,  immediately  upon  the  organization  of  said  associa- 
tion of  your  orator,  and  that  said  by-laws  contained  nothing 
repugnant  to  the  constitution  of  the  State  of  New  Jersey,  or  of 
the  United  States ;  and  that  by  said  constitution  and  by-laws  it 
was  provided  that  the  officers  of  the  said  association  should  be  a 
president,  treasurer  and  secretary  and  twelve  directors,  and  that 
all  of  said  officers  should  be  shareholders  of  said  association; 
that  the  president  and  treasurer  should  be  ex-qfficio  directors  of 
said  association ;  that  the  president  and  directors  should  be 
elected  annually  by  the  shareholders,  and  the  treasurer  and  sec- 
retary should  be  elected  by  the  directors ;  that  by  section 
of  article  of  said  constitution  of  your  orator's  said  asso- 

ciation and  by-laws,  it  was  further  provided  that  the  board  of 
directors  should  meet  statedly  on  the  in  each  and  every 

month,  at  such  place  as  they,  or  a  majority  of  them,  should 
appoint,  for  the  purpose  of  receiving  from  the  shareholders  of 
said  association  their  monthly  dues,  interest  and  fines,  and  pay 
the  same  into  the  treasury,  and  loan  out  the  funds  and  see  to 
their  safe  investment,  and  attend  to  the  financial  concerns  of  the 
association  generally ;  and  that  by  article  of  said  consti- 

tution, and   section  of  said   last-named   article — which 

article  directed,  restricted  and  secured  the  loans  of  said  associa- 
tion— it  was  further  provided  that  each  and  every  shareholder 
of  said  association  should  be  entitled  to  receive  a  loan  of 
dollars  on  each  and  every  share  held  by  such  shareholder ;  and 
by  section  of  said  article  it  was  further  provided 

and  declared  that  whenever  the  funds  of  the  said  association  in 
the  treasury  should  warrant,  one  or  more  loans  should  be  dis- 
posed of  to  the  highest  bidder  in  such  manner  as  the  directors 
might  determine,  provided  the  same  should  not  be  loaned  out 


BILLS   FOR   EELIEF,  ETC.  583 

under  par ;  and  that  by  the  said  last-named  section  it  was  further 
provided  and  declared  that  in  event  of  the  funds  of  the  said 
association  lying  unproductive  for  the  space  of  one  month,  the 
directors  should  be  empowered  to  loan  them  to  others  than 
shareholders,  on  undoubted  security,  to  be  repaid  on  or  before  the 
expiration  of  one  year  from  the  time  of  making  such  last-named 
loan  ;  and  that  by  section  of  the  said  last-named  article  it 

was  further  provided  and  declared  that  no  shareholder  should 
receive  any  loan  to  which  he  or  she  might  be  entitled  until  he 
or  she  should  secure  the  payment  thereof  to  the  association  by  a 
bond  and  mortgage  for  the  full  amount  of  the  sum  loaned,  and 
for  the  payment  of  such  fines  as  might  be  imposed  for  the  failure 
of  paying  installments  and  interest  when  due,  and  by  the  deposit 
of  the  policy  of  fire  insurance ;  and  for  every  loan  of  dollars 

made  to  a  shareholder,  at  least  one  share  of  stock  should  be 
assigned  as  collateral  security  to  said  bond  and  mortgage,  and 
that  no  money  should  be  loaned  on  any  property  already  encum- 
bered ;  and  that  by  section  of  said  last-named  article  it 
was  also  further  provided  that  shareholders  in  the  said  associa- 
tion should  be  entitled  to  borrow  the  amount  of  their  dues 
actually  paid  in  by  them  by  giving  their  bond,  with  interest  for 
the  same,  and  transferring  their  stock  to  the  association  as 
security. 

And  your  orator  further  showeth  unto  your  Honor,  that  the 
said  constitution  and  by-laws,  containing  the  several  articles  and 
sections  hereinbefore  mentioned  and  in  part  recited,  were  in  full 
force  and  virtue  on  the  day  of  ,  eighteen  hundred 

and  ,  and  had  been  legally  and  in  all  respects  properly 

and  lawfully  adopted  by  said  association  of  your  orator,  and 
were   on   the   said  day  of  ,  eighteen   hundred 

and  ,  in  full  force  and  effect,  and  binding  to  all  intents 

and  purposes  upon  the  said  association,  its  members  and  officers, 
and  that  each  and  every  one  of  the  officers  of  said  association 
who  were  in  office  in  said  association  on  the  said  day  of 

,  eighteen  hundred  and  ,  well  knew  the  full  force 

and  binding  operation  of  said  constitution  and  by-laws,  and  that 
they,  as  such  officers,  in  the  discharge  of  their  duties  as  such 
officers,  were  bound  by  and  subject  to  all  the  provisions,  restric- 


584  FORMS   OF   PLEADINGS. 

tions  and  requirements  of  said  constitution  and  by-laws,  and 
when  they  and  each  and  every  of  them  accepted  their  respective 
offices  to  which  they  were  elected  and  appointed,  and  entered 
upon  the  performance  of  the  duties  of  such  offices,  and  that  they 
and  each  and  every  of  them  agreed  with  your  orator  well,  faith- 
fully and  impartially  to  do,  execute  and  perform  the  duties  of 
their  said  offices,  to  manage  the  financial  concerns  of  your  orator, 
and  to  make  no  loan  nor  investment  of  the  funds  of  your  orator 
except  in  accordance  with  and  in  pursuance  of  the  said  provis- 
ions, restrictions  and  requirements  of  said  constitution,  and  in 
the  manner  and  upon  the  security  particularly  specified  by  the 
same. 

And  your  orator  further  showeth  unto  your  Honor,  that  on 
the  said  day  of  ,  eighteen  hundred  and  , 

was  the  president  of  the  said  association  of  your  orator, 
and  was  the  treasurer  of  said  association,  and  the  follow- 

ing-named persons  were  severally  the  directors  of  said  associa- 
tion, to  wit,  {name  directors  ;)  that  the  said  had  been  duly 
and  legally  elected  at  the  regular  time  appointed  by  the  said 
constitution  and  by-laws  of  said  association,  president  of  said 
association,  and  the  said  several  persons  named  hereinbefore,  as 
directors  of  said  association,  had  also  been  duly  and  legally 
elected  at  such  regular  time  for  such  election  as  aforesaid,  pro- 
vided for  by  said  constitution  and  by-laws,  such  directors  of 
said  association ;  and  that  said  had  then  been  duly  and 
legally  appointed  such  treasurer  of  said  association  by  said 
directors,  and  that  said  and  said  were  ex-ojieio 
directors  of  said  association ;  that  they  had  severally  accepted 
the  said  offices  of  president,  treasurer  and  directors,  and  had 
severally  entered  upon  the  discharge  of  the  duties  thereof,  and 
that  the  several  persons  above  named  as  directors  of  said  associa- 
tion had  also  severally  accepted  the  said  office  of  directors,  and 
had  severally  entered  upon  the  discharge  of  the  duties  of  said 
offices,  and  were  then,  that  is  to  say,  on  the  said  day  of 
,  eighteen  hundred  and  ,  in  full  possession  of  their 
said  offices,  acting  therein,  controlling  and  managing  the  financial 
and  other  affairs  of  your  orator,  and  that  your  orator  and  its 
members  and  shareholders  fully  entrusted  them  with  such  man- 


BILLS   FOR   RELIEF,  ETC.  585 

agement,  under  and  in  pursuance  of  and  in  accordance  with  the 
said  constitution  and  by-laws,  and  the  said  several  provisions, 
restrictions  and  requirements  thereof,  and  that  your  orator  and 
its  members  and  shareholders  had  a  legal  right  to  expect,  and 
did  expect,  that  the  said  ,  as  such  president,  and  the  said 

,  as  such  treasurer,  and  the  said  (set  out  names  of 
directors,)  as  such  directors,  would  in  all  things  have  conducted 
the  financial  and  other  aflfairs  of  your  orator  and  made  loans  and 
investments  of  the  funds  of  your  orator  according  to  the  said 
constitution  and  by-laws,  and  the  several  provisions,  restrictions 
and  requirements  thereof,  and  would  have  performed  the  several 
duties  of  their  respective  offices  in  a  careful  and  prudent  man- 
ner, without  negligence  and  according  to  said  constitution  and 
by-laws,  and  the  several  provisions,  restrictions  and  require- 
ments thereof,  as  in  equity  and  good  conscience  they  ought  to 
have  done. 

And  your  orator  further  showeth  unto  your  Honor,  that  on 
the  said  day  of  ,  eighteen  hundred  and  ,  the 

said  several  persons  hereinbefore  named,  being  such  president 
and  treasurer  and  directors  of  your  orator's  said  association, 
notwithstanding  the  premises  and  the  directions  in  said  consti- 
tution contained,  that  no  loans  of  any  money  belonging  to  your 
orator  should  be  made  by  the  directors  of  the  same  to  other  than 
shareholders,  except  upon  undoubted  security,  and  notwithstand- 
ing the  undertaking  and  agreement  of  the  said  directors  herein- 
before mentioned,  well  and  faithfully  and  impartially  to  do, 
execute  and  perform  their  duties  as  such  directors,  according  to 
and  in  pursuance  of  the  said  constitution  and  by-laws,  and  the 
several  provisions,  restrictions  and  requirements  thereof,  and 
notwithstanding  their  duty  in  the  premises,  and  in  violation  of 
the  trust  reposed  in  them,  and  contrary  to  the  said  constitution 
and  by-laws  of  your  orator,  and  the  said  several  provisions, 
restrictions  and  requirements,  did  loan  and  pay  over  to  the  said 

,  then  being  the  treasurer  of  your  orator's  said  associa- 
tion, and  ex-offido  one  of  its  directors,  the  sum  of  dollars, 
moneys  then  belonging  to  your  orator  and  then  in  its  treasury, 
without  taking  or  receiving  from  the  said  ,  or  from  any 
person  or  persons  on  his  behalf,  any  security  whatever  therefor, 


586  FOBMS  OF  PLEADINGS. 

or  for  the  repayment  of  said  moneys  by  the  said  to  your 

orator,  and  that  said  loan  was  made  to  the  said  not  as  a 

shareholder,  as  he  was  not  then  entitled  to  receive  any  loan 
whatever  upon  any  shares  in  said  association  of  your  orator 
which  might  have  been  or  were  then  held  by  him. 

And  your  orator  further  showeth  unto  your  Honor,  that  no 
part  whatever,  either  of  principal  or  interest,  of  or  upon  the  said 
loan  of  dollars  so  made  to  the  said  as  aforesaid  has 

ever  been  repaid  by  said  ,  or  by  any  person  or  persons  on 

his  behalf,  but  that  the  same  and  every  part  or  parcel  thereof 
still  remains  unpaid,  due  and  owing  to  your  orator ;  neither  has 
the  same,  nor  any  part  thereof,  or  of  the  interest  which  has 
fallen  and  become  due  and  payable  thereon,  been  paid  to  your 
orator,  or  to  any  person  or  persons  duly  qualified  to  receive  the 
same.  And  that  in  consequence  of  all  which  and  on  account  of 
and  by  reason  of  the  violation  of  the  constitution  and  by-laws 
of  your  orator's  said  association  by  the  said  several  directors  in 
not  taking  from  the  said  ,  at  the  time  of  the  loan  so  as 

aforesaid  made  to  him  by  the  said  directors,  security  for  the 
repayment  of  the  same  as  required  by  the  said  constitution  and 
by-laws,  said  sum  of  dollars,  and  the  interest  which  has 

accrued  thereon,  have  been  totally  lost  to  your  orator,  its  members 
and  shareholders,  and  your  orator  has  been  prevented  from 
closing  up  the  affairs  of  the  said  association,  and  the  object  and 
purpose  of  said  association  have  failed. 

And  your  orator  further  showeth  unto  your  Honor,  that  the 
said  is  now  dead  ;  that  he  died  about  one  year  ago ;  that 

has  been  duly  appointed  his  administrator  by  the  surro- 
gate of  the  county  of  ,  and  that  said  has  taken 
upon  himself  and  assumed  the  burthen  of  the  execution  of  such 
administration. 

And  your  orator  further  showeth  unto  your  Honor,  that  it, 
through  its  proper  officers,  has  frequently  and  in  a  friendly 
manner  applied  to  the  said  several  persons  named  above  as 
president  and  treasurer,  who  were  ex-ojfficio  directors  of  your 
orator's  said  association  as  aforesaid,  and  to  the  said  several 
other  persons  who  were  directors  of  your  orator's  said  association 
as  aforesaid,  or  one  or  some  of  them,  and  requested  them,  or  one 


BILLS  FOR  RELIEF,  ETC.  587 

or  some  of  them,  to  pay  to  your  orator  the  said  sum  of 
dollars  and   the  interest  thereon,  and  your  orator  well  hoped 
that  they,  or  one  of  them,  would  have  complied  with  such  rea- 
sonable request  of  your  orator.     But  now,  so  it  is,  that  the  said 
and  ,  contriving  how  to  injure  and  aggrieve  your 

orator  in  the  premises,  sometimes  give  out  and  pretend  that 
in  making  such  loan  to  said  of  the  said  sum  of 

dollars  they  acted  within  the  scope  and  meaning  of  the  said 
constitution  and  by-laws,  and  in  all  things  performed  their  duty 
as  such  directors  according  to  and  in  pursuance  of  said  constitu- 
tion and  by-laws,  and  that  in  making  such  loan  to  the  said 
they  acted  in  a  careful  and  prudent  manner  and  without 
negligence,  and  took  such  security  from  him  for  the  repayment 
of  the  said  loan  as  was  required  by  the  said  constitution  and  by- 
laws; all  which  actings,  doings  and  pretences  of  the  said 
and  are  contrary  to  equity  and  good  conscience,  and  tend 

to  the  manifest  wrong,  injury  and  oppression  of  your  orator, 
your  orator  hereby  expressly  charging  that  the  contrary  of  the 
said  pretences  is  true. 

In  tender  consideration  whereof,  and  forasmuch  as  your  orator 
has  not  a  complete  and  safe  remedy  in  the  premises  at  and  by 
the  strict  rules  of  the  common  law,  and  can  only  obtain  relief  in 
a  court  of  competent  jurisdiction,  where  matters  of  this  nature 
are  cognizable  and  the  parties  relievable :  To  the  end,  therefore, 
that  the  said  and  may?  without  oath,  full,  true, 

direct,  perfect  and  distinct  answers  make  to  all  and  singular  the 
said  matters,  and  that  as  fully  and  particularly  as  if  they  were 
herein  again  repeated  and  they  thereto  particularly  interrogated, 
paragraph  by  paragraph,  and  that  the  said  and  ,  or 

one  or  more  of  them,  may  be  decreed  by  this  honorable  court  to 
pay  to  your  orator  the  said  sum  of  dollars,  with  all 

interest  thereon  from  the  said  day  of  ,  eighteen 

hundred  and  ,  or  from  the  time  when  the  said  sum  of 

dollars  was  loaned  to  the  said  ,  and  that  your 

orator  may  have  such  further  or  other  relief  in  the  premises  as 
to  your  Honor  shall  seem  meet  and  shall  be  agreeable  to  equity 
and  good  conscience. 

{Prayer  for  subpoena.) 

{Signature  of  solicitor  and  counsel.) 


588  FORMS   OF   PLEADINGS. 

Bill  by  a  surety  to  compel  the  payment  of  a  debt 
by  the  principal.(a) 

[Address.) 

Complaining,  showeth  unto  your  Honor  your  orator,  , 

of  the  township  of  ,  in  the  county  of  and  State  of 

New  Jersey,  that  on  or  about  the  day  of  ,  in  the 

year  of  our  Lord  eighteen  hundred  and  ,  one  ,  of 

the  township  of  ,  in  the  said  county  of  ,  having 

occasion  for  the  use  of  a  large  sum  of  money,  made  application 
to  one  ,  a  counselor-at-law  residing  in  ,  to  procure 

him  a  loan,  and  the  said  ,  having  then  in  his  possession 

the  sum  of  dollars,  money  belonging  to  and  , 

agreed  with  the  said  to  loan  him,  the  said  ,  the 

sum  of  money  so  belonging  to  the  said  and  ,  pro- 

vided the  said  would  give  such  security  for  the  payment 

of  the  said  money  as  would  be  satisfactory  to  the  said  as 

their  attorney. 

And  your  orator  further  shows,  that  the  said  ,  on  or 

about  the  day  of  the  same  month  of  ,  applied  to 

your  orator  and  besought  him  to  become  surety  for  him,  the 

(a)  A  surety  who  has  paid  the  debt  amount   due,  all   he   can   recover   is 

of  the  principal  is  at  once  subrogated  what  he  paid.     D.,  L.  &  W.  R.  R.  Go. 

to  all  the  rights,  remedies  and  securi-  v.  Oxford  Iron  Co.,  11  Stew.  Eq.  151. 

ties  of  the  creditor.     Where  the  debt  Until  a  surety  pays,  his  principal  is 

has  become  payable,  the  surety  may  under  no  liability   to   him,  and   his 

file  a  bill  to  compel  payment  of  the  only  remedy  is   a   suit   in   equity  to 

principal,  in   order   that   he  may  be  compel  the  principal  to  pay  his  debt 

relieved     from     responsibility.      He  to  their  common  creditor.     Ihid. 
may,   in   special    cases,   compel    the  '        The  fact  that  the  rules  of  evidence 

creditor  to  resort  to  securities  in  his  will  not  permit  a  surety  to  avail  him- 

hands  before  coming  upon  the  surety.  self,  at  law,  of  the  only  existing  proof 

If  the  court  is  asked  to  interfere  on  of  his  defence,  will  not  entitle  him  to 

behalf  of  the  surety  before  judgment  relief  in  equity.     Linn  v.  Neldon,  8  C. 

is  recorded  against  him,  he  must  pre-  E.  Gr.  169. 

sent  some  special  ground  of  equitable  Where  one  is  surety  for  several  in 

relief.    Irick  v.  Black,  2  C.  E.  Or.  189 ;  the  same  instrument,  he  may  recover 

see  Goe  v.  N.  J.  Midland  Ry.  Go.,  12  from  all   or  either  of  his  principals 

C  E.  Or.  110.  the  amount  which  he  may  have  been 

All    that   a  surety   is   entitled    to  compelled   to  pay   by  reason  of  his 

against  the  principal  debtor  is  indem-  suretyship.     Apgar  v.  Hiler,  4   Zah^ 

nity.     If  he  pays  less  than  the  full  812. 


BILLS  FOE   RELIEF,  ETC.  589 

said  ,  to  the  said  and  for  the  ultimate  pay- 

ment of  the  said  sum  of  dollars,  and  your  orator,  after 

much  solicitation  of  the  said  ,  consented  to  become  the 

surety  for  the  said  for  the  said  sum  of  money. 

And  your  orator  further  shows,  that  on  the  same  day 

of  ,  in  the  year  of  our  Lord  eighteen  hundred  and  , 

the  said  and  your  orator  made,  executed  and  delivered  to 

the  said  and  their  joint  bond  or  writing  obligatory, 

bearing  date  the  said  day  of  ,  in  the  year  of  our 

Lord  eighteen  hundred  and  ,  in  the  penal  sum  of 

dollars,  lawful  money  of  the  United  States  of  America,  condi- 
tioned for  the  payment  of  dollars,  like  lawful  money,  in 
one  year  from  the  date  thereof,  with  lawful  interest  of  the  State 
of  New  Jersey  from  the  date  thereof  till  paid. 

And  your  orator  further  shows,  that  although  the  said  bond 
was  and  is  on  its  face  a  joint  and  several  bond,  yet  the  said  sum 
of  dollars  was  borrowed  by  the  said  upon  his  own 

individual  account  for  his  own  benefit  and  behoof,  and  not  for 
the  benefit  of  your  orator,  and  was  only  signed  by  your  orator 
as  surety,  and  at  the  special  instance  and  request  of  the  said 
,  your  orator  having  no  interest  therein. 

And  your  orator  further  shows,  that  the  said  ,  from 

time  to  time,  as  the  interest  became  due  and  payable  on  the  said 
bond  or  writing  obligatory,  paid  and  satisfied  the  same  until  the 
interest  accruing  and  becoming  due  on  the  day  of  , 

eighteen  hundred  and  ,  when  the  said  ,  as  your 

orator  is  informed  and  believes  to  be  true,  utterly  and  entirely 
refused  to  pay  the  said  interest  due  on  the  said  bond  or  writing 
obligatory,  or  any  part  thereof. 

And  your  orator  further  shows,  that  afterwards,  to  wit,  on 
the  day  of  ,  in  the  year  of  our  Lord  eighteen  hun- 

dred and  ,  the  said  having  refused  the  payment  of 

said  interest,  as  your  orator  has  understood  and  verily  believes, 
the  said  and  caused  a  judgment  to  be  entered  on 

the  said  bond  by  virtue  of  the  warrant  of  attorney  thereto  an- 
nexed, in  the  County  Circuit  Court  against  the  said 
and  your  orator  for  the  sum  of  dollars  debt  and 
dollars  costs  of  suit.     And  on  the  same  day  of 


590  FORMS   OF   PLEADINGS. 

caused  a  writ  of  execution  commonly  called  a  fieri  facias  de  bonis 
et  terris  to  be  issued  out  of  said  court  on  the  said  judgment,  di- 
rected to  the  sheriff  of  the  county  of  ,  commanding  him,  by 
endorsement  thereon,  to  levy  and  make  of  the  goods  and  chat- 
tels of  the  said  and  your  orator  the  sum  of  dollars 
as  the  real  debt,  besides  interest  and  costs  of  suit.  And  if  suffi- 
cient goods  and  chattels  of  the  said  and  your  orator  could 
not  be  found  in  his  county  whereof  to  make  the  said  debt 
and  costs,  that  then  he  should  cause  the  whole  or  the  residue 
thereof,  as  the  case  might  require,  to  be  made  of  the  lands,  tene- 
ments and  hereditaments  and  real  estate  whereof  the  said 
and  your  orator  were  seized  on  the  day  of  ,  in  the 
year  of  our  Lord  eighteen  hundred  and  ,  in  whose  hands 
soever  the  same  might  then  be,  and  that  he  should  have  those 
moneys  before  the  said  Circuit  Court  on  the  Tuesday  of 
then  next,  to  render  to  the  said  and  for 
their  debt  and  costs  aforesaid,  as  by  a  certified  copy  of  said 
judgment  and  execution  thereon  issued,  now  in  the  possession  of 
your  orator  and  ready  to  be  produced,  may  and  will  more  fully 
appear. 

And  your  orator  further  shows,  that  afterwards,  on  the  same 
day  of  ,  the  said  writ  of  fieri  facias,  after  having 

been  first  duly  recorded,  was  delivered  to  ,  sheriff  of  the 

county  of  aforesaid,  to  be  executed,  and   that  the  said 

sheriff  proceeded  to  make  a  levy  and  inventory  thereon  as 
therein  directed,  and  did  levy  and  inventory  the  goods  and 
chattels  of  the  said  as  follows,  viz. :  {describe  chattels.) 

And  your  orator  further  shows,  that  he  has  understood  and 
believes  it  to  be  true  that  the  said  goods  and  chattels,  lands  and 
tenements  of  the  said  so  levied  on  and  inventoried  are  not 

subject  to  any  prior  encumbrances  whatever,  and  are  abundantly 
sufficient  to  pay  and  satisfy  the  amount  of  the  said  execution 
and  costs. 

And  your  orator  farther  shows,  that  on  or  about  the 

day  of  ,  in  the  year  of  our  Lord  eighteen  hundred  and 

,  the  said  sheriff  being  about  to  proceed  to  make  the 

money  due  on  said  execution  from  the  goods  and  chattels  of  the 

said  ,  ,  the  father  of  ,  having  become  apprised 


BILLS   FOR   RELIEF,  ETC.  691 

of  the  entering  up  the  said  judgment  by  the  said  and 

against  the  said  and  your  orator,  and  the  proceedings  of 

the  said  sheriflF  to  make  the  money  from  the  goods  and  chattels 
of  the  said  ,  applied  to  the  said  to  know  the  con- 

sideration for  which  the  said  bond  was  given,  and  your  orator 
has  understood  and  believes  it  to  be  true,  and  therefore  alleges, 
that  the  said  was  informed  by  the  said  that  the  said 

sum  of  dollars  mentioned  in  the  condition  of  the  said 

bond  or  writing  obligatory  was  lent  and  advanced  to  the  said 

on  his  own  individual  account,  and  that  your  orator  was 
joined  with  the  said  in  the  said  bond  or  writing  obligatory 

only  as  a  surety  for  him,  the  said  ,  and  that  the  said  debt 

was  the  debt  of  the  said  alone. 

And  your  orator  further  shows,  that  the  said  ,  father  of 

the  said  ,  afterwards,  to  wit,  on  or  about  the  day  of 

,  in  the  year  of  our  Lord  eighteen  hundred  and  , 

with  full  knowledge  so  as  aforesaid  obtained,  that  the  said  bond 
or  writing  obligatory  was  given  for  a  loan  made  to  the  said 

,  and  that  the  said  judgment  entered  thereon  was  for  the 
sole  and  individual  debt  of  the  said  ,  applied  to  the  said 

and  ,  through  their  attorney,  the  said  ,  to 

purchase  the  hereinbefore-recited  judgment. 

And  your  orator  further  shows,  that  the  said  and  , 

by  their  certain  deed  of  assignment,  executed  in  due  form  of  law, 
bearing  date  the  said  day  of  in  the  year  aforesaid, 

did  grant,  bargain,  sell,  assign,  transfer  and  set  over  to  the  said 

,  his  executors,  administrators  and  assigns,  the  said  judg- 
ment and  all  moneys  due  and  to  become  due  thereon,  and  all 
benefit  of  proceedings  by  execution  or  otherwise  had  or  to  be 
had  thereon.     And  that  the  said  and  have  no  fur- 

ther interest  in  the  said  judgment  and  the  execution  issued 
thereon. 

And  your  orator  further  shows  that  the  said  having, 

by  virtue  of  the  said  assignment,  the  entire  and  sole  control  over 
the  said  judgment,  now  seeks  to  cause  the  money  due  thereon  to 
be  made  from  the  goods  and  chattels,  lands  and  tenements  of 
your  orator,  and  without  first  resorting  to  the  goods  and  chat- 
tels, lands  and  tenements  of  the  said  ,  and  hath  ordered 


:592  FORMS  OF  PLEADINGS. 

and  directed  the  said  ,  sheriff  of  the  county  of 

aforesaid,  to  advertise  and  sell  the  goods  and  chattels  of  your 
orator,  and  not  the  goods  and  chattels  of  the  said  ,  to 

raise  and  pay  the  said  sum  of  money  due  on  said  judgment,  to- 
gether with  the  costs.  And  the  said  now  threatens,  in 
pursuance  of  the  orders  of  the  said  ,  to  advertise  and  sell 
the  goods  and  chattels  of  your  orator  to  make  the  said  moneys 
due  on  the  said  execution  solely  out  of  the  property  of  your 
orator,  unless  your  orator  shall  otherwise  pay  and  satisfy  the 
same. 

And  your  orator  further  shows,  that  he  is  ready  and  willing 
to  pay  and  satisfy  whatever  balance  may  remain  due  and  unpaid 
on  said  judgment  and  execution  after  the  goods  and  chattels, 
lands  and  tenements  of  the  said  ,  the  real  debtor,  shall  be 

sold  and  applied  to  the  payment  thereof,  as  the  said  in 

justice  and  equity  ought  to  cause  to  be  done,  but  refuses  so  to 
do,  and  not  only  refuses  to  cause  the  goods  and  chattels,  lands 
and  tenements  of  the  said  to  be  first  sold  and  applied 

in  payment  of  the  said  execution,  but  sometimes  pretends  and 
gives  out  in  speeches  that  the  said  never  did  borrow  of 

the  said  and  the  said  sum  of  dollars,  or  any 

other  sum  of  money,  and  other  times  he  pretends  that  the  said 
sum  of  money  was  borrowed  by  the  said  and  your  orator 

jointly,  whereas  your  orator  expressly  charges  the  contrary 
thereof  to  be  true ;  and  that  the  said  sum  of  money  was  bor- 
rowed by  the  said  on  his  own  individual  account,  and  that 
your  orator  simply  signed  the  said  bond  as  his  surety ;  all  which 
actings  and  pretences  of  the  said  are  contrary  to  equity 
and  good  conscience,  and  tend  to  the  manifest  wrong  and  injury 
of  your  orator. 

In  tender  consideration  whereof,  and  forasmuch  as  your  orator 
is  without  adequate  remedy  in  the  premises  by  the  strict  rules  of 
the  common  law  and  without  the  aid  of  this  honorable  court, 
where  matters  of  this  nature  are  properly  cognizable  and  reliev- 
able :  To  the  end,  therefore,  that  the  said  defendants  may,  upon 
their  several  and  respective  oaths,  (or  affirmations,  if  conscien- 
tiously scrupulous  of  taking  an  oath,)  full,  true,  perfect  and  dis- 
tinct answers  make  to  all  and  every  the  matters  aforesaid,  and 


BELLS   FOR   RELIEF,  ETC.  593 

that  as  fully  as  if  the  same  were  here  again  repeated  and  they 
thereunto  interrogated,  paragraph  by  paragraph.  And  that  the 
said  and  also  the  said  ,  sheriff  as  aforesaid,  be 

restrained — that  is,  that  the  said  sheriff  shall  be  restrained — from 
making  sale  of  the  goods  and  chattels  of  your  orator  under  and 
by  virtue  of  said  writ  of  execution  until  after  a  sale  of  the  goods 
and  chattels,  lands  and  tenements  of  the  said  shall  have 

been  made  and  the  proceeds  applied  to  the  satisfaction  of  the 
said  judgment,  and  that  the  said  be  also  restrained  from 

conveying,  assigning  or  in  anywise  disposing  of  the  said  judg- 
ment assigned  by  the  said  and  to  him  as  aforesaid, 
and  from  issuing  or  causing  to  be  issued  any  alias  or  other  exe- 
cution thereon  until  after  the  goods  and  chattels,  lands  and  tene- 
ments of  the  said  shall  be  sold  to  raise  and  pay  the  amount 
due  on  said  execution,  and  that  your  orator  may  have  such 
further  or  other  relief  in  the  premises  as  the  nature  of  the  case 
may  require,  and  as  may  be  agreeable  to  equity  and  good  con- 
science. 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
unto  your  orator,  not  only  the  state's  most  gracious  writ  of  in- 
junction, issuing  out  of  and  under  the  seal  of  this  honorable 
court,  to  be  directed  to  the  said  ,  sheriff  of  the  county  of 

,  his  deputies  and  all  other  persons  acting  under  him  or 
by  his  directions,  strictly  enjoining  and  commanding  him  and 
them  to  refrain  from  making  sale  of  any  property  of  your 
orator,  ,  under  and  by  virtue  of  eaid  writ  of  execution,  or 

otherwise  proceeding  thereon  until  after  the  sale  of  the  goods 
and  chattels,  lands  and  tenements  of  the  said  ,  and  one 

other  like  writ  of  injunction  to  be  directed  to  the  said  , 

strictly  enjoining  and  commanding  him,  his  agents  and  attorneys, 
from  making  sale,  conveying,  assigning  or  otherwise  disposing 
of  the  said  judgment  so  as  aforesaid  assigned  to  him  by  the  said 
and  ,  or  the  execution  issued  thereon,  and  from 

issuing,  or  causing  to  be  issued,  any  alias  or  other  execution  on 
the  said  judgment,  but  also  the  state's  writ  of  subpoena,  &c. 
{Signature  of  solicitor  of  eomplainant.) 
2n 


594  FOEM8   OF   PLEADINGS. 

Bill  by  next  of  kin  for  distributive  share  of  an 
estate  in  the  hands  of  an  administrator. (a) 

[Address.) 

Humbly  complaining,  showeth  unto  your  Honor  your  or^trix^ 
,  of  the  city  and  county  and  State  of  ,  that  , 

late  of  the  county  of  and  State  of  New  Jersey,  was  in  his 

lifetime  and  at  the  time  of  his  death  possessed  of  and  well  enti- 
tled to  a  considerable  personal  estate,  consisting  of  moneys  in  the 
funds  and  debts  due  to  him,  household  goods,  wearing  apparel 
and  divers  other  effects  of  some  amount  and  value,  and  was  also 
owner  in  fee  simple  and  seized  of  about  acres  of  land  in 

the  neighborhood  of  ,  in  the  county  of  ,  adjoining 

lands  then  of  and  others,  of  considerable  value. 

And  your  oratrix  further  shows,  that  the  said  ,  on  or 

about  the  day  of  ,  in  the  year  of  our  Lord  eighteen 

hundred  and  ,  departed  this  life  intestate,  leaving  his 

wife,  ,  and  your  oratrix,  his  daughter  and  only  next  of 

kin,  him  surviving. 

And  your  oratrix  further  shows,  that  since  the  death  of  the 
said  intestate  his  said  wife,  ,  and  one  ,  have  ob- 

tained letters  of  administration  of  the  goods  and  chattels,  rights 
and  credits  of  the  said  intestate  to  be  granted  to  them  by  the 
surrogate  of  the  county  of  ,  and  have,  by  virtue  thereof, 

possessed  themselves  of  the  personal  estate  and  effects  of  the  said 
intestate  to  a  considerable  amount  and  value  and  with  the  pro- 

(a)  A  bill  in  equity  by  the  next  of  ceased  persons.  Frey  v.  Demurest,  1 
kin  for  distributive  share  of  an  estate  C  E.  Gr.  236  ;  Dorsheimer  v.  Rorbacky 
in  the  hands  of  an  administrator  will  8  C.  E.  Gr.  46.  Unless  for  some 
be  sustained  where  no  decree  for  dis-  special  cause,  the  Court  of  Chancery 
tribution  has  been  made.  The  statu-  will  not  interfere  with  the  ordinary 
tory  remedy  by  suit  at  law  for  the  jurisdiction  of  the  Orphans'  Court  in 
recovery  of  a  legacy  or  a  distributive  the  settlement  of  the  accounts  of  exec- 
share  of  an  estate  is  cumulative,  and  utors  and  administrators.  Nor  will  it 
was  not  designed  to  limit  or  qualify  attempt  to  look  behind  such  settle- 
the  ancient  jurisdiction  of  the  court  of  ment  unless  on  the  ground  of  fraud 
equity  over  the  subject.  The  Court  or  mistake.  Frey  v.  Demarest,  1  C. 
of  Chancery  has  concurrent  jurisdic-  E.  Gr.  236 ;  Mattheivs  v.  Hoagland,  S 
tion  with  the  Prerogative  Court  over  Dick.  Ch.  Rep.  491. 
the  administration  of  the  assets  of  de- 


BILLS   FOR   RELIEF,  ETC.  695 

ceeds  of  said  real  estate,  much  more  than  sufficient  to  pay  and 
satisfy  his  just  debts  and  funeral  expenses  and  all  legal  charges 
against  the  said  estate. 

And  your  oratrix  further  shows,  that  the  said  ,  the 

wife  of  the  said  intestate,  after  the  obtaining  of  the  said  letters  of 
administration,  intermarried  with  ,  then  of  city,  in 

the  county  of  and  State  of  ,  who  departed  this  life 

on  or  about  the  day  of  ,  a.  d.  eighteen  hundred 

and  ,  leaving  the  said  again  a  widow,  as  she  has 

remained  hitherto  and  still  remains. 

And  your  oratrix  further  shows,  that  the  said  administratrix 
and  administrator,  after  they  had  entered  upon  the  discharge  of 
their  duties  as  such,  represented  to  the  Orphans'  Court  of  the 
county  of  that  the  personal  estate  of  the  said  decedent  was 

insufficient  to  pay  his  debts,  and  praying  the  aid  of  the  said 
court  in  the  premises,  obtained  a  rule  of  said  court  for  all  per- 
sons interested  to  show  cause  why  so  much  of  the  land  and  real 
estate  of  the  said  deceased  in  the  county  of  should  not  be 

sold  as  would  be  sufficient  to  pay  his  debts,  which  rule  was  ob- 
tained on  or  about  the  day  of  ,  A.  d.  eighteen  hun- 
dred and  ,  whereupon  such  proceedings  were  afterwards 
had,  that  on  or  about  the  day  of  ,  A.  d.  eighteen 
hundred  and  ,  the  said  Orphans'  Court  ordered  the  said 
administrator  and  administratrix  to  sell  the  whole  of  the  lands, 
tenements,  hereditaments  and  real  estate  of  the  said  deceased 
situate  in  the  county  of  for  the  payment  of  the  debts  of 
said  deceased ;  whereupon,  and  on  or  about  the  day  of 
,  A.  D.  eighteen  hundred  and  ,  the  said  adminis- 
trator and  administratrix  did  sell  the  said  lands  and  premises  of 
the  said  ,  deceased,  hereinbefore  described,  at  public  vendue 
for  a  large  sum  of  money  to  one  ,  which  sum  of  money 
was  paid,  as  your  oratrix  expressly  chargei-,  to  the  said  , 
who  held  and  still  holds  the  same,  or  some  part  thereof,  in  his 
possession,  or  has  disposed  of  or  invested  the  same  for  his  own 
use  and  benefit. 

And  your  oratrix  further  shows,  that  the  said  reduced 

the  said  personal  estate  of  the  said  intestate  into  money  by  pub- 
lic sale  or  otherwise,  realizing  thereon  a  considerable  amount  of 


596  FORMS   OF   PLEADINGS. 

money,  and  took  the  same  into  his  own  personal  possession  and 
custody  and  mingled  the  same  with  the  said  proceeds  of  said 
real  estate,  and  held  and  still  holds  the  same,  or  some  part 
thereof,  in  his  possession,  or  has  disposed  of  or  invested  the  same 
for  his  own  use  and  benefit. 

And  your  oratrix  further  charges,  that  the  said  has  had 

the  charge  and  possession  and  custody  of  the  whole  of  the  pro- 
ceeds of  said  personal  and  real  estate,  and  that  the  said  , 
now  ,  has  not  had  any  custody  or  control  thereof  what- 
ever, but  has  committed  and  entrusted  the  whole  thereof  to  the 
said 

And  your  oratrix  further  shows,  that  the  said  letters  of  ad- 
ministration were  so  granted  to  the  said  ,  now  ,  and 
,  on  or  about  the  day  of  ,  a.  d.  eighteen 
hundred  and             ,  on  which  day  the  said  letters  bear  date. 

And  your  oratrix  further  shows,  that  she  was  born  on  the 
day  of  ,  A.  D.  eighteen  hundred  and  ,  and  is 

consequently  at  the  present  time  between  and  years 

of  age ;  that  no  guardian  was  ever  appointed  of  her  person  or 
estate,  and  that  she  has  always  resided  and  still  resides  with  her 
mother;  that  she  resided  for  about  months  in  the  said 

county  of  after  the  death  of  her  said  father,  and  then 

removed  with  her  said  mother  to  the  city  of  ,  where  she 

has  ever  since  resided,  and  for  more  than  years  has  resided 

at  No.  street;  and  that  the  said  ,  her  mother's 

second  husband,  maintained  and  supported  your  oratrix  until 
about  the  day  of  ,  a.  d.  eighteen  hundred  and 

,  when  he  departed  this  life  intestate. 

And  your  oratrix  further  shows,  that  the  said  ,  as  such 

administrator,  presented,  on  or  about  the  day  of  , 

A.  D.  eighteen  hundred  and  ,  to  the  Orphans'  Court  of  the 

county  of  ,  his  separate  account  as  administrator  of  the 

said  ,  then  late  of  the  township  of  ,  in  the  county 

of  ,  deceased,  purporting  to  be  an  account  as  well  of  and 

for  such  and  so  much  of  the  personal  estate  of  the  said  deceased, 
and  of  the  proceeds  of  the  sale  of  his  real  estate  as  had  come  to 
the  hands  of  that  accountant  as  of  and  concerning  his  payments 
and  disbursements  out  of  the  same,  in  and  by  which  account  the 


BILLS   FOR   RELIEF,  ETC.  597 

said  charged  himself  with  the  sum  of  dollars  and 

cents  as  the  proceeds  of  said  personal  estate  and  the  sale 
of  said  lands,  and  prayed  allowance  for  the  sum  of  dollars 

and  cents,  for  moneys  paid  on  account  of  said  estate,  in- 

cluding the  sum  of  dollars  and  cents  retained  by 

said  accountant  as  due  to  him  for  principal  and  interest  on  a 
bond  and  mortgage  of  the  said  intestate,  and  including  also  the 
sum  of  dollars  and  cents  for  the  commissions  of  said 

accountant,  being,  as  charged,  per  cent,  upon  the  said 

sum  of  dollars  and  cents,  leaving  a  balance,  as  stated 

in  said  account  in  the  hands  of  the  said  accountant,  on  the  said 
day  of  ,  A.  D.  eighteen  hundred  and      .       ,  of 

dollars  and  cents,  which  said  account  was  in  all 

things  allowed  by  the  said  Orphans'  Court  on  the  day  and  year 
last  aforesaid. 

And  your  oratrix  further  shows,  that  the  said  balance  or  sur- 
plus of  the  said  decedent's  estate  remaining  in  the  hands  of  the 
said  became   distributable   upon   the   allowing   of   said 

account  between  your  oratrix,  being  the  only  child  and  next  of 
kin  of  the  said  ,  deceased,  and  the  said  ,  now 

who  was  entitled  to  her  dower  therein,  or  in  some  part  thereof, 
according  to  the  statute  in  such  case  made  and  provided ;  and 
your  oratrix,  as  the  only  child  of  said  ,  deceased,  was 

entitled  to  the  whole  of  said  residue,  subject  to  the  dower  of  her 
said  mother  therein  ;  and  your  oratrix  charges  that  the  dower  of 
her  said  mother  was  confined  to  the  personal  part  of  said  residue, 
being  the  part  which  represented  the  personal  estate,  if  any  such 
remained. 

And  your  oratrix  further  shows,  that  the  said  balance  or 
residue  was  the  balance  of  the  consideration  or  price  of  the  real 
estate  remaining  after  the  payment  of  said  debts,  and  stood  in 
the  place  of  and  represented  said  estate,  and  descended  to  your 
oratrix  as  the  only  lawful  child  of  said  ,  deceased,  in  the 

same  manner  as  real  estates  descend  by  law,  and  as  provided  by 
the  law  of  descents  of  this  state. 

And  your  oratrix  further  shows,  that  whatever  interest  the 
said  ,  late  ,  may  have  had  in  the  said  surplus  or 

residue  in  the  hands  of  the  said  ,  has  been  given,  trans- 


598  FORMS   OP   PLEADINGS. 

ferred,  set  over  and  assigned  by  the  said  to  your  oratrix, 

and  belongs  to  your  oratrix,  who  is  entitled  to  receive  the  same ; 
that  the  said  consented,  about  the  time  of  the  sale  of  said 

lands,  that  your  oratrix  should  have  the  whole  of  said  surplus, 
and  with  the  approbation  and  consent  of  the  said  ,  directed 

that  he  should  pay  the  same  to  your  oratrix  without  regard  to 
the  dower  of  said  ;  that  the  said  always  considered 

the  same  to  belong  to  your  oratrix,  and  had  the  more  surely  to 
secure  the  same  to  your  oratrix  by  an  instrument  in  writing, 
under  her  hand  and  seal,  bearing  date  a  certain  day  and  year 
therein  mentioned,  that  is  to  say,  the  day  of  ,  A.  d. 

eighteen  hundred  and  ,  for  and  in  consideration  of  natural 

love  and  affection,  and  of  one  dollar  to  her  in  hand  paid  for 
and  by  her  daughter,  your  oratrix,  sold,  granted,  assigned,  trans- 
ferred and  set  over,  and  by  those  presents  did  sell,  assign,  trans- 
fer and  set  over  unto  your  oratrix  all  her  right,  title  and  interest 
whatsoever  in  and  to  the  estate  of  ,  deceased,  remaining  in 

the  hands  of  ,  or  whatever  may  be  due  from  said 

to  said  estate,  or  held  by  him  for  said  estate,  fully  transferring 
the  same  and  all  her  interest  therein  to  her  said  daughter,  your 
oratrix,  for  her  own  proper  use,  benefit  and  behoof  forever ; 
and  she  thereby  fully  authorized  and  empowered  your  oratrix  to 
use  all  proper  ways  and  means  for  the  collection  and  obtaining 
possession  thereof  in  her  name  or  otherwise,  and  either  at  law  or 
otherwise,  as  might  be  proper  or  necessary,  thereby  fully  ratify- 
ing and  confirming  all  that  your  oratrix  might  do  or  cause  to  be 
done  in  the  premises,  to  which  paper,  now  in  the  possession  of 
your  oratrix,  for  greater  certainty  reference  is  made. 

And  your  oratrix  further  shows,  that  the  said  has  had 

notice  and  has  been  fully  aware  that  your  oratrix  was  entitled 
to  receive  the  whole  of  said  money,  from  the  time  that  said 
account  was  filed  by  him  in  said  Orphans'  Court. 

And  your  oratrix  further  shows,  that  the  said  has  never 

paid  the  said  balance  so  reported  by  him  to  be  in  his  hands,  nor 
any  part  thereof,  either  to  the  said  before  or  after  her 

second  marriage,  nor  to  any  person  for  her  or  on  her  account, 
nor  to  her  second  husband,  nor  to  your  oratrix,  nor  to  any 
person  for  or  on  account  of  your  oratrix,  but  on  the  contrary 


BILLS   FOR   RELIEF,  ETC.  599 

thereof  has  used  and  applied  the  said  money  in  his  own  affairs 
and  business,  and  has  mingled  and  associated  the  same  with  his 
own  funds,  and  has  transacted  business  therewith  for  his  own 
private  benefit  during,  as  your  oratrix  is  informed  and  believes, 
more  than  years  last  past,  and  so  continues  to  use  the 

same,  and  has  refused  to  give  or  render  any  account  thereof, 
either  to  your  oratrix  or  to  any  person  for  her  or  on  her  account. 

And  your  oratrix  further  shows,  that  the   said  has 

neglected  and  refused  to  obtain  any  decree  of  distribution,  as  he 
ought  to  have  done,  in  the  said  Orphans'  Court  of  the  county  of 
,  directing  the  distribution  of  said  estate  according  to 
law,  and  has  neglected  and  refused  to  obtain  the  appointment  of 
a  guardian  for  your  oratrix,  although  he  well  knew  the  infancy 
of  your  oratrix,  and  knew  that  your  oratrix  had  no  guardian  or 
any  other  person  authorized  to  receive  her  said  moneys  due  to 
her  as  aforesaid ;  and  the  said  ,  well  knowing  the  facts 

aforesaid,  neglected  and  refused  to  obtain  an  order  of  the  said 
court  to  invest  the  said  moneys  for  the  benefit  of  your  oratrix, 
as  he  ought  to  have  done. 

And  your  oratrix  further  shows  and  expressly  charges,  that 
she  is  not  only  entitled  to  receive  the  whole  of  the  said  balance 
of  said  sale  of  said  real  estate,  and  of  said  personal  estate  so 
remaining  in  the  hands  of  said  ,  but  is  also  entitled  to 

receive   from  him  the  interest  thereon  for  more  than 
years  last  past,  that  is  to  eay,  from  the  day  of  f 

A.  D.  eighteen  hundred  and  ,  to  be  computed  at  the  rate 

of  per  cent,  per  annum. 

And  your  oratrix  further  shows,  that  being  so  entitled  as 
aforesaid,  your  oratrix  hath  frequently,  by  herself  and  her 
agents,  applied  to  the  said  and  requested  him  to  come  to 

an  account  with  your  oratrix  for  the  personal  estate  and  said  real 
estate  of  her  said  father,  deceased,  and  for  said  balance  so  reported 
by  said  administrator  to  be  in  his  hands  belonging  to  said  estate, 
and  for  the  interest  thereon,  as  aforesaid,  and  to  pay  to  your 
oratrix  her  part  or  share  of  the  clear  residue  thereof,  or  the 
whole  thereof;  and  your  oratrix  hoped  that  the  said 
would  have  complied  with  such  request,  as  in  justice  and  equity 
he  ought. 


600  FORMS  OF   PLEADINGS. 

And  your  oratrix  further  shows,  that  the  said  ,  some 

time  in  the  month  of  ,  A.  d.  eighteen  hundred  and  , 

promised  the  solicitor  of  your  oratrix  that  he  would  settle  the 
said  account  with  your  oratrix  by  paying  her  the  said  balance 
so  reported  by  him  to  be  due  to  her,  with  the  interest  thereon  at 
per  cent,  for  years  and  months,  making 

together  the  sum  of  dollars,  and  that  he  would  make  said 

settlement  during  the  week  then  next  following ;  but  instead  of 
carrying  out  said  settlement  the  said  sent  to  your  oratrix's 

solicitor  his  counsel,  ,  esquire,  who  declined  to  carry  out 

the  said  agreement,  contending  that  the  said  could  not  be 

compelled  to  pay  so  much  interest,  but  expressing  himself  will- 
ing, in  behalf  of  said  ,  to  pay  said  balance  so  reported  in 
said  account,  with  years'  interest  thereon,  to  your  oratrix, 
which  your  oratrix  declined  to  accept. 

And  your  oratrix  further  shows,  that  the  said  ,  since 

this  case  was  given  to  the  solicitor  of  your  oratrix,  has  called 
more  than  once  upon  your  oratrix  and  her  said  mother  in  refer- 
ence to  a  settlement  of  this  case,  and  on  one  occasion  he  said,  in 
the  presence  of  your  oratrix,  that  he  did  not  mingle  the  money 
of  your  oratrix  with  his  own,  or  did  not  use  the  same  for 
years  after  he  received  the  same ;  on  another  occasion  he  said  he 
had  not  used  the  same  for  more  than  years,  and  was  not 

liable  to  pay  more  than  years'  interest  thereon,  at  which 

time  he  made  a  tender  to  your  oratrix  of  some  money  which  he 
said  was  the  amount  so  reported  by  him  to  be  due  to  your  oratrix, 
with  interest  for  years  thereon,  which  your  oratrix  declined 

to  receive  in  full  settlement  of  her  claim  and  demand  against  the 
said  ,  your  oratrix  insisting,  as  she  does  now  insist,  that 

she  was  and  is  entitled  to  the  full  sum  of  said  balance  so  reported 
to  be  held  by  said  ,  with  the  interest  thereon  from  the  date 

of  the  order  of  said  Orphans'  Court  allowing  said  report,  and 
insisting  that  the  said  should  pay  the  same  to  your  oratrix, 

as  in  justice  and  equity  he  ought. 

But  now  so  it  is,  may  it  please  your  Honor,  that  the  said 

absolutely  refuses  to  comply  with  such  requests,  and  he 

at  times  pretends  that  he  is  not  called  upon  to  pay  any  interest 

on  said  balance  so  reported  by  him  to  be  in  his  hands ;  that  he 


BILLS   FOR   RELIEF,  ETC.  601 

has  used  said  money  for  not  more  than  years,  and  ought 

not  to  pay  more  than  years'  interest  thereon  ;  and  that  he 

has  tendered  the  whole  amount  due  to  your  oratrix  to  your 
oratrix  or  her  solicitor ;  whereas,  your  oratrix  charges  the  con- 
trary thereof  to  be  the  truth,  and  so  it  would  appear  if  the  said 
would  set  forth,  as  he  ought  to  do,  a  full  and  true  account 
of  all  and  every  the  personal  estate  and  proceeds  of  said  real 
estate  of  the  said  intestate,  and  of  his  application  thereof. 

And  your  oratrix  further  charges,  that  the  said  ought 

also  to  set  forth  a  true  and  full  account  of  the  rents,  profits  and 
interest  of  the  said  real  estate  or  the  proceeds  thereof  which 
have  been  possessed  or  received  by  him,  or  by  his  order  or  to 
his  use ;  all  which  actings,  doings,  pretences  and  refusals  are 
contrary  to  equity  and  good  conscience,  and  tend  to  the  manifest 
wrong  and  injury  of  your  oratrix  in  the  premises. 

In  consideration  whereof,  and  forasmuch  as  your  oratrix  can 
only  have  adequate  relief  in  the  premises  in  a  court  of  equity, 
where  matters  of  this  nature  are  properly  cognizable  and  reliev- 
able :   To  the  end,  therefore,  that  the  said  and 

may,  upon  their  several  and  respective  corporal  oaths,  to  the 
best  and  utmost  of  their  several  and  respective  knowledge, 
remembrance,  information  and  belief,  full,  true,  direct  and  per- 
fect answer  make  to  all  and  singular  the  matters  aforesaid,  and 
that  as  fully  and  particularly  as  if  the  same  were  here  repeated, 
and  they  and  each  of  them  distinctly  interrogated  thereto,  and 
that  the  said  defendants  may  answer  the  premises;  and  that  an 
account  may  be  taken,  by  and  under  the  direction  of  this  honor- 
able court,  of  the  personal  estate  and  effects  of  the  said  intestate, 
,  possessed  by  or  come  to  the  hands  of  the  said  and 

,  late  ,  administrator   and   administratrix  of  the 

said  ,  deceased,  or  either  of  them,  or  to  the  hands  of  any 

other  person  or  persons  by  the  order  of  them,  or  either  of  them, 
or  for  the  use  of  them  or  either  of  them,  and  also  an  account  of 
the  said  intestate's  funeral  expenses  and  just  debts;  and  that  an 
account  may  also  be  taken  of  the  rents  and  profits  and  proceeds 
of  the  said  intestate's  real  estate  which  have  been  received  by 
the  said  defendants,  or  either  of  them,  or  by  any  other  person 
or  persons,  or  their  or  either  of  their  order,  or  to  their  or  either 


602  FORMS   OF   PLEADINGS. 

of  their  use,  and  of  the  application  and  disposition  thereof,  and 
of  the  use  thereof,  and  interest  and  profits  thereof  which  have 
been  received  by  said  defendants  or  either  of  them,  or  by  any 
other  person  or  persons  by  their  or  either  of  their  order,  or  to 
their  or  either  of  their  use ;  and  that  the  said  intestate's  personal 
estate,  and  so  much  of  the  proceeds  and  profits  of  his  said  real 
estate  as  may  be  necessary,  may  be  applied  in  the  payment  of  his 
funeral  expenses  and  just  debts  in  a  due  course  of  administra- 
tion ;  and  that  a  clear  residue  of  said  personal  estate,  and  of  the 
proceeds  and  profits  of  said  real  estate,  may  be  ascertained,  and 
that  it  may  be  clearly  ascertained  what  amount  is  now  due  from 
the  said  administrator  and  administratrix,  or  either  of  them,  for 
and  on  account  of  said  estate,  real  and  personal ;  and  what 
amount  of  interest  is  due  from  said  defendants,  or  either  of 
them,  upon  any  balance  of  said  estate,  real  and  personal,  held 
by  them  or  either  of  them ;  and  that  the  exact  amount  of  said 
residue  and  interest  to  which  your  oratrix  is  entitled,  as  the  sole 
heir  and  child  of  the  said  intestate,  may  be  distinctly  ascertained  ; 
and  that  the  amount  to  which  the  said  would  be  entitled 

for  her  dower,  so  granted  and  assigned  to  your  oratrix  as  afore- 
said, may  be  distinctly  ascertained ;  and  that  your  oratrix  may 
be  paid  the  whole  of  such  clear  residue  and  interest  thereon  as 
such  next  of  kin  and  grantee  or  assignee  of  such  dower,  together 
with  all  your  oratrix's  costs  and  charges  in  this  behalf  sustained  ; 
and  that  your  oratrix  may  have  such  further  or  other  relief  in 
the  premises  as  to  your  Honor  may  seem  meet  and  shall  be 
agreeable  to  equity  and  good  conscience. 
{Prayer  for  subposna.) 

{Signature  of  solicitor  and  counsel.) 

Bill  for  the  establishment  of  a  destroyed  will.(a) 
{Address.) 

Complaining,  show  unto  your  Honor  your  orators,  > 

with  her  husband,  ,  and  ,  with  her  husband,  , 

(a)  In  order  to  establish  a  will  in  of  the  court,  must  be  examined.  But 
the  Court  of  Chancery,  all  the  wit-  if  either  of  the  witnesses  be  dead  or 
nesses  to  the  will,  if  within  the  power       insane,  or  without  the  jvirisdiction  of 


BILLS   FOR   RELIEF,  ETC.  603 

of  the  county  of  ,  that  heretofore,  to  wit,  on  or  about  the 

day  of  ,  eighteen  hundred  and  ,  ,  then 

of  ,  county  of  aforesaid,  made  in  due  form  of  law 

his  last  will  and  testament,  and  having  duly  executed  the  same 
died  subsequently,  leaving  the  same  unaltered  and  unrevoked ; 
that  in  and  by  the  said  last  will  and  testament  the  said  testator 
did  {state  substance  of  will.) 

And  your  orators  further  show,  that  ,  one  of  the  executors 

of  said  will,  after  the  death  of  said  testator,  died,  leaving  , 

another  of  said  executors,  him  surviving ;  said  executors  having 
made  a  partial  settlement  of  said  estate,  a  further  settlement 
thereof  was  subsequently  made  by  and  ,  as  the 

executors  of  said  ,  so  far  as  such  settlement  could  be  made 

agreeably  to  the  provisions  of  said  last  will  and  testament,  as  by 
reference  to  said  settlements  will  more  fully  appear  if  such  refer- 
ence be  necessary. 

And  your  orators  further  show,  that  aforesaid  received 

here  share  and  proportion  of  the  chattels  bequeathed  to  her  and 
her  sister  by  said  will,  and  also  a  share  of  the  proceeds  of 

the  sale  of  the  lands  directed  to  be  sold  and  of  the  rights  and 
credits  of  said  testator,  but  whether  in  part  or  in  full  your 
orators  have  never  been  informed  or  ascertained  ;  that  said 
never  married,  and  died  in  the  month  of  ,  eighteen  hun- 

dred and  ,  without  leaving  lawful  issue,  and  leaving  her 

surviving  her  brother  only  of  her  brothers  and  sisters. 

And  your  orators  further  show,  that  on  or  about  the 

day  of  ,  eighteen  hundred  and  ,  , 

father  of  your  oratrix,  ,  received  from  the  said  ,  or 

on  her  behalf,  securities  amounting  to  the  sum  of  dollars 

and  cents,  which  sum  of  money  he  continued  to  hold  and 

to  manage  and  to  dispose  of  to  the  benefit  of  said  and 

the  court,  the  will  may  be  established  clear,    satisfactory    and    convincing, 

without   the   evidence   of   such   wit-  Wyckoff  v.  Wyckoff,  1  C.  E.  Or.  401, 

nesees.    Bailey  v.  Stiles,  1  Or.  Ch.  220.  The  mere  proof  of  the  loss  or  destruc- 

The  true  rule  is  that  the  will  may  be  tion  of  an  instrument  does  not,  as  a 

established  upon  satisfactory  j)roof  of  matter  of  course,  let  in  the  party  to 

its  destruction,  and  of  its  contents  or  give  secondary  evidence  of  its  con- 

sul)stance.     Whether  the  proof  be  by  tents.     Ibid. 
one  witness  or  by  many,  it  nnist  be 


604  FORMS   OF   PLEADINGS. 

under  her  direction  during  the  lifetime  of  the  said  ,  and 

under  such  use  and  disposition  said  fund,  or  the  balance  thereof, 
on  the  day  of  ,  eighteen  hundred  and  , 

amounted  to  the  sum  of  dollars  and  cents  or  there- 

abouts, as  they  are  informed  and  believe. 

And  your  orators  further  show,  that  shortly  after  the  decease 
of  said  ,  as  your  orators  are  informed  and  believe,  letters 

of  administration  of  her  estate  were  applied  for  and  obtained  by 

,  of  said  county  of  ,  but  your  orators  charge  that 

such  letters  of  administration  were  obtained  and  issued  improvi- 
dently  and  under  the  erroneous  impression  that  said  had 

died  intestate,  whereas  in  truth  and  in  fact  your  orators  charge 
that  said  in  her  lifetime  duly  made  and  executed  a  last 

will  and  testament,  in  writing  and  under  her  seal,  and  being  at 
the  time  of  sound  and  disposing  mind  and  memory,  bearing  date 
in  the  month  of  ,  eighteen  hundred  and  ,  in  the 

presence  of  three  subscribing  witnesses  thereto,  and  whereof  the 
said  was  made  the  sole  executor,  and  in  the  words  and  to 

the  effect  following,  that  is  to  say,  {here  insert  will.) 

And  your  orators  further  show,  that  upon  the  decease  of  said 

,  said  and  ,  executors  as  aforesaid  of  , 

deceased,  who  was  the  surviving  executor  as  aforesaid  of  the 
will  of  said  ,  under  the  terms  aforesaid  of  the  said  will  of 

,  claimed  that,  inasmuch  as  the  said  died  without 

leaving  lawful  issue,  the  legacy  given  to  said  by  said  will 

reverted  to  the  estate  of  said  and  became  subject  to  the 

limitation  over  thereof  for  the  use  and  benefit  of  such  persons  as 
under  the  terms  of  said  will  of  the  said  might  be  entitled 

thereto. 

And  your  orators  further  show,  that  the  said  legacy,  or  the 
unexpended  balance  thereof,  constituted  the  entire  estate  of  said 

,  and  the  said  ,  believing  that  such  claim  was  well 

founded,  and  reposing  especial  confidence  in  the  opinion  and  judg- 
,ment  of  said  ,  one  of  said  executors,  as  they  are  informed 

and  believe,  and  that  the  last  will  and  testament  of  said  was 

and  became  of  no  practical  use  or  benefit  to  the  persons  therein 
named,  inconsiderately  and  incautiously  destroyed  the  same. 


BILLS   FOR   RELIEF,  ETC.  605 

And  your  orators  further  show,  that  they  have  recently  been 
informed  that  the  claim  so  as  aforesaid  made  in  behalf  of  the 
estate  of  the  said  was  not  valid  in  law  and  therefore  was 

erroneous,  and  that  in  truth  and  in  fact  said  legacy  given  to  said 
was  not  subject  to  any  limitation  over  in  said  will  con- 
tained, but  became  absolute  in  the  said  and  subject  to  dis- 
position by  will  or  otherwise  of  the  said  ,  and  that  your 
orators  are  directly  interested  in  the  establishment  of  said  will 
of            ,  being  two  of  the  legatees  in  said  will. 

And  your  orators  further  show,  that  who  survived  as 

aforesaid  the  said  after  her  death,  was  the  only  surviving 

child  of  said  ,  the  testator,  and  recently  died,  as  your 

orators  are  informed  and  believe,  intestate,  leaving  a  large  num- 
ber of  persons  who  claim  to  be  his  next  of  kin,  and  as  such 
entitled  to  the  legacies  aforesaid  left  to  the  said  ,  or  to  the 

unexpended  balance  thereof,  as  part  of  the  estate  of  said  ; 

and  at  their  instance  ,  one  of  the  said  next  of  kin,  has  ob- 

tained letters  of  administration  of  the  estate  of  said  of  the 

surrogate  of  the  county  of  aforesaid,  and  thereupon  claim 

the  amount  of  said  legacy,  or  the  unexpended  balance  thereof, 
under  the  limitation  over  thereof  made  by  the  will  of  the  said 
,  and  your  orators  insist  that  such  claim  is  invalid  in 
law  and  tends  to  the  manifest  injury  of  your  orators.  And  your 
orators  well  hoped  that  the  said  ,  administrators  as  afore- 

said, and  ,  administratrix  as  aforesaid,  would  have  de- 

sisted from  and  disclaimed  such  claims  and  pretences  as  afore- 
said, and  would  have  established  or  suffered  without  delay  or 
denial  the  establishment  of  said  last  will  and  testament  of  said 
,  they  well  knowing  that  in  equity  and  good  conscience 
that  should  be  done. 

But  now  so  it  is,  may  it  please  your  Honor,  said  defendants 
hereto  sometimes  pretend  that  no  such  last  will  and  testament 
was  made  as  charged  by  said  ,  or  that  the  same  was  inad- 

vertently and  with  erroneous  impressions  destroyed  as  aforesaid, 
the  contrary  whereof  the  complainants  charge  and  humbly  pray 
the  aid  and  decree  of  this  honorable  court  in  the  proof  and 
establishment  of  said  last  will  and  testament  of  said  ,  and 

that  the  same  being  proved  may  be  in  all  respects  ratified  and 


606  FORMS   OF   PLEADINGS. 

confirmed,  to  the  end  that  letters  testamentary  may  be  thereupon 
issued  and  the  rights  of  the  complainants  and  others  named  and 
interested  in  said  will  recognized  and  enforced  as  in  equity 
ought  to  be  done,  and  in  this  honorable  court,  where  matters  of 
this  sort  are  properly  cognizable  and  relievable,  and  that  said 
letters  of  administration  granted  as  aforesaid  to  said  may 

be  annulled  and  for  nothing  holden  if  need  be,  and  that  your 
orators  may  have  such  further  or  other  relief  in  the  premises 
as  the  nature  of  the  case  may  require  and  as  may  be  agreeable  to 
equity  and  good  conscience. 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
unto  your  orators  a  writ  or  writs  of  subpoena,  &c. 

(Signature  of  solicitor  and  counsel.) 

Bill  to  set  aside  a  conveyance  of  real  estate  on 
the  ground  of  its  fraudulent  procurement. (a) 

(Address.) 

Complaining,  show  unto  your  Honor  your  orators,  , 

of  the  county  of  ,  and  ,  of  the  county  of  , 

(a)  An  ejectment  bill,  technically  action  of  ejectment  he  has  no  remedy- 
so  termed,  is  one  brought  simply  for  in  this  court.  The  principle  is  too 
the  recovery  of  real  property,  together  broad  and  the  practice  of  the  court 
with  an  account  of  rents  and  profits,  against  it.  There  are  many  cases  in 
without  setting  out  any  distinct  and  which  the  jurisdiction  of  courts  of 
substantive  ground  of  equity  jurisdic-  law  and  equity  are  concurrent,  and 
tion,  which  would  be  demurrable  the  party  is  at  liberty  to  seek  relief 
where  there  is  no  proper  ground  of  in  either.  Ibid. 
equity.     Crane  v.  Conklin,  Sax.  346.   •  It  is  a  well-settled  principle  that 

But  a  bill  to  set  aside  a  fraudulent  relief  is  to  be  obtained  in  this  court 

conveyance,  filed  by  those  who,  with-  not  only  against  writings,  deeds  and 

out  the  encumbrance  of  such  convey-  the    most    solemn     assurances,     but 

ance,  are  undoubtedly  entitled,  is  alto-  against  judgments  and  decrees,  if  ob- 

gether  different    from   an   ejectment  tained  by  fraud  and  imposition, 

bill,  and  comes  within  the  ordinary  If  there  has  been  the  suppression 

powers  of  this  court.     Ibid.  of  a  truth,  or  the  suggestion  of  a  false- 

In  this  case  an   ejectment   might  hood,   whereby   a    party   is   circum- 

have  been  brought.     The  title  of  the  vented  or  deceived,  equity  will  relieve 

heirs  is  strictly   a    legal    title,   and  against  it.    Ibid. 

might  have  been  asserted  in  a  court  Where  undue  advantage  has  been 

of  law.     But  it  does  not  follow  that  taken  of  the  weakness  or  necessity  of 

because  a   party   may   resort    to   an  the  party,  or  of  any  situation  in  which 


BILLS   FOR   RELIEF,  ETC.  607 

in  this  state,  that  ,  late  of  ,  in  the  county  of 

aforesaid,  died  intestate  and  without  issue,  leaving  your  orators 
and   oratrices   aforesaid    his    heirs-at-law ;    that   your   orators^ 

and  ,  are  surviving  brothers  of  the  said  , 

deceased;  your  oratrices,  and  ,  are  sisters  of  the 

said  ,  deceased,  and  your  orators  and  oratrices,  and 

,  are  nieces  and  nephews  of  the  said  ,  deceased, 

representing   their  father,  ,  who  was  a  brother  of  the 

said  ,  deceased,  and  who  died  in  his  lifetime,  that  is  to 

say,  that  the  said  ,  deceased,  was  seized  and  possessed 

in  his  lifetime  of  considerable  real  and  personal  estate,  in  the 
county  of  aforesaid,  in  this  state,  the  personal  estate  con- 

sisting of  furniture  and  other  property  to  a  considerable  value, 
the  items  and  particulars  of  which  your  orators  and  oratrices 
cannot  now  specify ;  that  the  real  estate  of  the  said  con- 

sisted of  a  dwelling-house  and  several  lots  and  parcels  of  land 
hereinafter  mentioned,  and  which,  at  the  time  of  making  the  deed 
and  conveyance  thereof,  hereinafter  mentioned,  as  your  orators 
charge  and   believe,  were  worth  the  sum  of  dollars  or 

upwards. 

And  your  orators  and  oratrices  further  show,  that  the  said 

died  a  widower  on  or  about  the  day  of  ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  , 

aged  about  years ;  his  wife  ,  at  the  time  of  making 

the  deed  hereinafter  mentioned,  and  for  a  long  time  before,  was 

he  is  placed,  rendering  him  peculiarly  misrepresentation,   but   this   is   only 

liable  to   imposition,  this  court   will  where  the  party  is  able  to  contract, 

interfere.      It  proceeds   on   the  safe  Where  the  party  was  intoxicated,  in- 

principle  of  protecting  those  who  are  adequacy  of  price  is  direct  evidence 

not  able  to  protect  themselves.     Ibid.  of  fraud.    Ibid. 

It   has   become  the  settled  rule  of  The   fact   of  the   price   not   being 

this  court  that  it  will  not  interfere  to  paid,  is  no  ground  to  set  aside  a  deed. 

assist  a  person  on  the  ground  of  in-  The  fraud  must  be  in  the  original 
toxication  merely,  but  if  any  unfair  ^  transaction,  and  not  in  the  non-ful- 

advantage  has  been  taken  of  his  situ-  fiUment  of  the  contract.     But  though 

ation  it  will  render  all   proper  aid.  it  does  not  change  the  nature  of  the 

Ibid.  transaction,    it    may,   if   proved,   be 

Inadequacy  of  price  can  never  be  strong    testimony    to    show   its    real 

the   ground  of  setting   aside  a  deed  character.    Ibid. 
unless   accompanied    with    fraud   or 


«608  FORMS   OF   PLEADINGS. 

in  a  weak  and  feeble  state  of  health  and  not  expected  long  to 
live,  and  having  died  soon  after  the  making  of  the  deed  herein- 
after mentioned ;  that  the  said  ,  for  the  last  or 
years  of  his  life,  had  become  habitually  addicted  to 
intemperance,  and  at  times  drank  to  such  excess  as  to  be  bereft 
of  all  reason ;  that  during  the  months  of  and  of 
the  year  preceding  his  death  he  was  almost  uninterruptedly  and 
incessantly  under  the  influence  of  liquor,  to  such  a  degree  as  to 
be  wholly  incapable  of  business,  or  of  making  any  contract, 
bargain  or  disposition  of  his  property  with  discretion  or  under- 
standing ;  that  his  habits  of  intemperance  were,  and  had  for  a 
long  time  been,  such  that  when  for  a  few  days  he  refrained  from 
drinking  immoderately  a  general  debility  both  of  body  and  mind 
would  take  place,  and  render  him  incompetent  to  the  rational 
transaction  of  any  business. 

And  your  orators  and  oratrices  further  show,  that  on  or  about 
the  day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ,  and  at  a  period  when  the  said 

was  either  in  a  state  of  actual  intoxication,  or  so  enfeebled  and 
debilitated  in  mind  from  the  indirect  influence  of  a  long  fit  of 
intoxication  from  which  he  was  then  just  recovering,  and  while 
he  was,  as  your  orators  and  oratrices  charge,  legally  incompetent 
to  make  any  contract  or  disposition  of  his  property,  one  , 

of  the  city  of  ,  a  brother  of  the  wife  of  the  said  , 

and  one  ,  whom  your  orators  and  oratrices  believe  was  a 

cousin  of,  or  otherwise  related  to,  the  wife  of  the  said  , 

availing  themselves  of  the  wretched  condition  of  the  said 
,  fraudulently  and  most  unconscientiously,  and  without 
any,  or  if  any,  a  totally  inadequate  and  mere  colorable  consider- 
ation, procured  from  him  a  deed  or  conveyance,  in  fee  simple, 
for  all  his  lands  and  real  estate,  which  deed  bears  date  the 
day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  ,  and  purports  to  be  made  between  the  said 

and  ,  his  wife,  as  parties  of  the  first  part,  and  the 

said  and  ,  of  the  second  part,  and  is  expressed  to  be 

made  "  for  and  in  consideration  of  divers  good  causes  and  con- 
siderations the  said  party  of  the  first  part  thereunto  moving, 
and  for  and  in  consideration  of  the  sum  of  dollars,  money 


BILLS   FOR   RELIEF,  ETC.  609 

of  the  United  States  of  America,  to  them  in  hand  well  and  truly 
paid  by  the  said  party  of  the  second  part,  at  and  before  the  seal- 
ing and  delivery  of  those  presents :  "    Whereupon  your  orators 
charge  that  no  such  sum  of  money  was  paid  by  the  said 
and  ,  or  either  of  them,  to  the  said  ,  at  the  time  of 

making  the  said  pretended  deed,  or  at  any  time  before  or  after 
the  making  thereof;  nor  were  there  any  such  good  causes  and 
considerations  as  are  mentioned  in  the  said  deed  then  existing  or 
moving  from  the  said  and  to  the  said  ,  nor 

any  other  considerations  than  the  pretended  inadequate  and 
colorable  ones  hereinafter  mentioned. 

And  your  orators  further  show,  that  the  lands  and  real  estate, 
a  conveyance  whereof  was  obtained   from   the  said  in 

manner  aforesaid,  are  described  in  the  said  deed  as  follows: 
{describe  lands.) 

And  your  orators  further  show,  that  the  execution  of  the  said 
deed  by  the  said  ,  by  making  her  mark  thereto,  appears, 

by  a  copy  of  the  said  deed  now  in  your  orators'  possession,  to 
have  been  witnessed  by  one  ,  and  that  afterwards 

subscribed  his  name  as  a  witness  to  the  execution  thereof  by 
both  of  the  grantors  therein  named. 

And  your  orators   further  show,  that   the   said  and 

,  in  further  prosecution  of  their  aforesaid  fraudulent  and 
unjust  designs,  and  to  give  color  to  the  same,  made  and  executed 
a  certain  instrument  of  writing  and  delivered  the  same  to  the 
said  ,  or  to  his  wife,  who  was  then  living,  in  the  words 

following,  to  wit :  [describe  agreement.) 

And   your  orators  further  show,  that  although  by  the  said 
agreement  the  said  and  bound  themselves  to  pay 

off  all  the  debts  which  the  said  then  owed,  they  well 

knew,  and  your  orators  charge  the  truth  to  be,  that  the  said 
then  owed  no  debts,  or  if  any,  very  small  and  trifling 
ones,  amounting  in  the  whole  to  a  few,  say  or 

dollars,  and  that  what  he  did  owe  was  wholly  or  principally  for 
rum  or  other  intoxicating  liquor ;  and  your  orators  charge  that 
the  said  and  have  paid  no  debts  that  were  then 

due  and  owing  from  the  said  ,  or  if  any,  to  a  very  small 

2o 


610  FORMS   OF   PLEADINGS. 

amount ;  nor  did  the  said  and  ,  or  either  of  them, 

pay  to  or  for  the  said  ,  during  the  rest  of  his  miserable 

life,  even  the  small  pittance  of  dollars  a  week,  or  if  they 

have  paid  anything  for  him  since  the  making  of  the  said  deed, 
it  has  been  for  rum  or  spirituous  liquors  of  the  poorest  and 
most  pernicious  kind,  whereby  the  said  was  kept,  from 

the  time  of  their  getting  the  aforesaid  deed  to  the  time  of  his 
death,  almost  continually  in  a  state  of  intoxication. 

And  your  orators  further  show,  that  after  the  death  of  the 
said  ,  the  wife  of  the  said  ,  which  happened  soon 

after  the  making  of  the  said  deed,  and  from  that  time  to 
the  day  of  his  death  the  said  was  left  by  the  said 

and  to  suffering  and  want,  many  days  going  without 

food,  or  having  none  but  what  charity  administered  to  him; 
that  application  was  made  by  him^  or  by  some  of  his  neighbors 
and  acquaintances,  to  the  overseers  of  the  poor  of  the  township 
of  for  his  relief;  and  your  orators  have  been  informed 

and  believe  that  he  was,  during  the  latter  part  of  his  life, 
assisted  or  relieved  in  some  meiasure  by  the  said  overseers  of 
the  poor,  such  of  your  orators  as  lived  near  him,  and  heard 
of  his  suffering  and  destitute  situation,  being  themselves  poor 
and  unable  to  contribute  to  his  relief,  and  others  of  them  resid- 
ing in  the  State  of  ,  and  being  at  the  time  ignorant  of  the 
facts  and  circumstances  hereinbefore  stated. 

And  your  orators  further  show,  that  the  said  repeatedly, 

after  the  aforesaid  deed  had  been  obtained  from  him,  in  his 
soberer  moments  complained  of  the  manner  in  which  the  same 
had  been  procured,  and  made  application  to  his  friends  and  to 
counsel  to  assist  him  in  getting  back  his  property;  but  such 
were  his  habits  of  intemperance  and  shattered  state  of  his  mind 
that  he  was  unable  to  institute  and  carry  on  any  suit  for  the 
recovery  of  his  property. 

And   your   orators   further   show,  that   soon   after   the  said 

and  obtained  the  said  deed,  they  took  possession 

of  all   the   personal   property,  and   also  of  all   the   said   real 

estate  of  the  said  ;  they  sold  the  furniture  and  personal 

property,  or  otherwise  disposed  of  the  same  for  their  own  use 


BILLS   FOR   EELIEF,  ETC.  611 

and  benefit,  leaving  the  said  only  an  old  bed  to  lie  upon ; 

they  rented  out  the  dwelling-house  and  the  lot  whereon  the  same 
stands,  and  other  lands  in  the  said  deed  mentioned,  and  have 
ever  since  received  the  rents  and  profits  thereof,  amounting,  as 
your  orators  believe  and  charge,  to  several  hundred  dollars; 
and  the  said  and  ,  having  lately,  as  your  orators 

believe  and  charge,  sold  and  conveyed  the  lot  of  land  secondly 
described  in  the  aforesaid  deed,  and  containing  between 
and  acres,  to  ,  of'  ,  in  the  county  of 

aforesaid,  but  for  how  much  money  is  to  your  orators  unknown  ; 
but  they  expressly  state  and  charge  that  the  said  pur- 

chased the  said  premises  with  notice  of  the  fraudulent  and 
unlawful  manner  in  which  the  said  and  obtained 

the  said  deed,  and  of  the  insufficiency  of  their  title,  and  that  the 
said  land  belonged  to  your  orators  as  the  heirs-at-law  of  the 
said  ,  and  therefore  the  said  required  a  warranty 

deed  for  the  same  from  the  said  and 

And  your  orators  well  hoped  that  the  said  and 

would  have  given  up  and  yielded  to  your  orators  the  said  lands 
and  premises  and  every  part  thereof  so  by  them,  the  said 
and  ,  respectively  held  and  enjoyed,  and  that  they  would 

have  released  to  your  orators  all  pretence  of  right  or  title  to  the 
same,  and  that  the  said  and  would  have  accounted 

for  the  proceeds  of,  or  would  have  given  up  to  your  orators 
the  personal  property  and  effects  of  the  said  ,  deceased ; 

and  for  that  purpose  your  orators,  or  some  of  them,  have  in  a 
friendly  manner  applied  to  the  said  and  and  re- 

quested them  so  to  do ;  and  your  orators  have  offered  and  ten- 
dered themselves  ready  and  willing  to  pay  and  refund  to  the 
said  and  any  and  all  such  sum  and  sums  of  money 

as  they  may  have  actually  paid,  either  in  satisfaction  of  debts 
due  from  the  said  or  on  account  of  the  dollars  a 

week  so  as  aforesaid  agreed  by  them  to  be  paid  to  him. 

But  now  so  it  is,  may  it  please  your  Honor,  that  the  said 

and  ,  contriving  and   intending   to  injure  and 

aggrieve  your  orators  in  the  premises,  and  to  defraud  them  out 

of  the  said  lands  and  premises,  which  of  right  belong  to  your 


612  FORMS   OF   PLEADINGS. 

orators  by  descent  to  them  as  the  heirs-at-law  of  the  said  , 

deceased,  wholly  refuse  to  comply  with  such  reasonable  request 
of  your  orators,  as  in  justice  and  equity  they  ought  to  have 
done;  and  to  justify  such  their  fraudulent  and  inequitable 
conduct,  the  said  and  severally  set  up  and  insist 

upon  various  untrue  and  unjust  allegations  and  pretensions, 
sometimes  giving  out  in  speeches  that  they  have  paid  a  full 
and  valuable  consideration  to  the  said  in  his  lifetime  for 

the  said  lands  and  premises,  whereas  your  orators  expressly 
charge  the  contrary  to  be  the  fact,  and  that  the  consideration 
actually  paid  or  stipulated  to  be  paid  was  merely  colorable,  and 
so  utterly  disproportionate  and  inadequate  as  must  carry  convic- 
tion to  every  mind  of  fraud  and  circumvention  on  the  part  of 
the  said  and  ,  and  of  a  total  imbecility  of  mind  and 

incapacity  for  business  on  the  part  of  the  said  at  the  time 

of  the  said  transaction ;  and  at  other  times  pretend,  that  how- 
ever inadequate  the  consideration  given  or  agreed  to  be  given 
by  them,  yet  that  the  said  had  a  right  to  do  with  his  prop- 

erty as  he  pleased,  and  that  he  having  executed  such  deed  as 
aforesaid  in  his  lifetime,  the  title  in  fee  simple  is  vested  in  them, 
and  that  your  orators,  as  his  heirs-at-law,  have  no  right  or 
title  thereto;  whereas  your  orators  expressly  charge,  that  the 
said   deed  was   obtained   by  the  said  and  from 

the  said  by  fraud  and  circumvention  or  undue  influence, 

or  while  he  was  in  a  state  of  intoxication  to  such  a  degree 
that  he  had  not  his  senses,  or  if  not  then  under  the  direct  influ- 
ence of  liquor,  was  so  debilitated  in  mind  and  his  reason  so 
shattered  by  a  long  course  of  intemperance  as  not  to  know  what 
he  was  about,  and  as  to  render  him  wholly  incompetent  to  make 
any  sale  or  disposition  of  his  property ;  and  they  make  various 
other  false  and  unfounded  allegations,  all  which  actings  and 
doings  of  the  said  and  are  contrary  to  equity  and 

good  conscience  and  tend  to  the  manifest  injury  and  oppression 
of  your  orators. 

In  tender  consideration  whereof,  and  for  that  your  orators 
are  remediless  in  the  premises  by  the  strict  rules  of  the  common 
law,  and  can  only  be  adequately  relieved  in  this  honorable 
court,  where  matters  of  this  nature  are  properly  cognizable,  and 


BILLS   FOR  RELIEF,  ETC.  613 

■where  deeds  and  other  writings  obtained  by  fraud  or  circum- 
vention may  be  set  aside  and  decreed  to  be  given  up  and  can- 
celed :  To  the  end,  therefore,  that  the  said  and 
may,  upon  their  several  and  respective  corporal  oaths,  true, 
full,  direct  and  perfect  answer  make,  according  to  their  knowl- 
edge, information  or  belief  respectively,  to  all  and  singular  the 
matters  and  things  hereinbefore  stated,  and  that  as  fully  and 
particularly  as  if  the  same  were  here  repeated  and  they  and 
each  of  them  thereunto  interrogated,  paragraph  by  paragraph, 
with  dates,  sums  and  all  attendant  circumstances,  and  the  said 

and  ,  and  each  of  them,  may  answer  and  set 

forth  whether  they  did  not  obtain  such  deed,  as  hereinbefore 
described,  from  the  said  ,  or  some  other,  and  what  deed, 

and  when,  and  the  date  thereof,  for  the  aforesaid  lands  and 
premises,  and  what  consideration  they  paid  or  agreed  to  pay 
therefor,  and  the  value  of  the  said  lands  and  real  estate  at  the 
time  of  getting  such  deed,  and  who  was  present  when  they  bar- 
gained for  the  same,  and  to  whom  and  in  whose  presence  they 
paid  therefor,  if  anything  they  did  pay  to  the  said  ,  or  to 

any  person  for  him,  and  what  were  the  divers  good  causes  and 
considerations  in  the  said  deed  mentioned,  and  upon  which  the 
same  is  stated  to  have  been  made,  and  may  discover  and  set  forth 
the   particulars  and  value  of  the  personal  estate  of  the  said 

,  and  may  set  forth  what  debts  the  said  owed  at 

the  time  of  making  the  said  deed,  and  to  whom,  and  the  amount 
thereof,  and  whether  they  have  paid  the  same,  and  how  much, 
and  to  whom,  and  whether  they  did  not  execute  such  covenant 
or  agreement  with  the  said  as  is  hereinbefore  set  forth, 

and  some  other  and  what  agreement,  and  whether  they  paid  him 

dollars  a  week  during  his  life,  after  the  making  of  the 
said  deed,  or  any  part  thereof,  and  how  much,  and  when,  and  in 
whose  presence ;  and  whether  the  same  was  paid  in  money  to 
him,  or  how  otherwise,  and  whether  they  have  rented,  sold,  or 
otherwise  disposed  of  the  said  real  estate,  or  any  part  thereof, 
and  to  whom,  and  for  how  much,  and  that  they  may  account  for 
the  rents,  issues  and  profits  thereof,  and  that  an  account  may 
also  be  had  and  stated  of  the  moneys,  if  any,  that  have  been  by 
them  actually  paid  and  advanced  to  or  for  the  said  at  the 


614  FORMS   OF   PLEADIKGS. 

time  of  and  since  the  making  of  the  said  deed  ;  and  that  the  said 
may  answer  and  set  forth  what  land,  and  how  much,  if 
any,  he  has  purchased  of  the  said  and  that  did 

belong  to  the  said  in  his  lifetime,  and  how  much  he  has 

paid  or  agreed  to  pay  therefor,  and  whether  he  had  not  heard 
and  did  not  know  the  facts  and  circumstances  hereinbefore  stated,, 
or  some  and  which  of  them,  and  whether  in  consequence  of  his 
knowledge  or  belief  of  the  doubtful  nature  of  the  title  of  the 
said  and  ,  and   of  the    manner  in  which    they 

acquired  the  same,  and  that  your  orators  intended  to  call  the 
same  in  question,  he  did  not  require  and  take  a  warranty  deed 
from  the  said  and  ;  and  that  as  well  the  deed 

or  conveyance  from  the  said  and  his  wife  to  the  said 

and  ,  as  the  deed  from  the  latter  to  the  said 

,  may  be  decreed  to  be  fraudulent  or  unduly  obtained, 
and  therefore  void  and  inoperative  as  against  your  orators,  and 
that  the  same  may  be  set  aside  and  decreed  to  be  given  up 
and  canceled,  and  that  said  and  may  be  decreed 

or   compelled    to   convey  or   release   to   your   orators   all   the 
said   lands  and  real   estate  now  by  them  respectively  held   as 
aforesaid,  or  that  the  said  lands  and  premises  may  be  sold  under 
the  decree  and  direction  of  this  court,  and  that  the  said 
and  may  be  paid  out  of  the  proceeds  thereof  what  may 

be  found  due  to  them  (if  anything  shall  be  found  due  to  them) 
upon  the  foot  of  such  account  as  aforesaid,  and  that  the  residue 
of  the  said  moneys  may  be  distributed  among  your  orators  in 
proportion  to  their  respective  rights  and  interests  in  the  said 
estate  of  the  said  ,  deceased,  and  that  the  said 

and  ,  or  some  or  one  of  them,  may  be  decreed  to  pay  to 

your  orators  their  costs  and  charges  to  be  taxed  in  this  suit,  and 
that  your  orators  may  have  such  further  or  other  relief  in  the 
premises  as  the  nature  and  circumstances  of  their  case  may  re- 
quire, and  as  may  be  agreeable  to  equity  and  good  conscience. 
{Prayer  for  subpcena.) 

{Signature  of  solicitor  and  counsel.) 


TO   QUIET   TITLE. 


615 


BILL  TO   QUIET   TITLE.(a) 

In  Chancery  of  New  Jersey. 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey  : 

Complaining,  shows  unto  your  Honor  your  orator,  ,  of 

,  in  the  county  of  ,  and  State  of  New  Jersey,  that 

on  or  about  the  day  of  ,  eighteen  hundred  and 

,  your  orator  purchased  of  ,  for  a  full  valuable 

consideration,  and  said  and  his  wife  conveyed,  by  a  deed 

containiDg  full  covenants  of  warranty  and  seisin,  to  your  orator, 


(a)  When  any  person  is  in  peace- 
able possession  of  lands  in  this  state, 
claiming  to  own  the  same,  and  his 
title  thereto  or  to  any  part  thereof  is 
denied  or  disputed,  or  any  other  per- 
son claims,  or  is  claimed  to  own  the 
same  or  any  part  thereof,  or  any  in- 
terest therein,  or  to  hold  any  lien  or 
encumbrance  thereon,  and  no  suit 
shall  be  pending  to  enforce  or  test  the 
validity  of  such  tit'e,  claim  or  encum- 
brance, it  shall  be  lawful  for  sucli 
person  so  in  possession  to  bring  and 
maintain  a  suit  in  chancery  to  settle 
the  title  of  said  lands,  and  to  clear  up 
all  doubts  and  disputes  concerning 
the  tame.  The  bill  of  complaint  in 
such  suit  shall  describe  the  lands 
with  certainty,  and  shall  name  the 
person  who  claims,  or  is  claimed  or 
reputed  to  have  such  title  or  interest 
in  or  encumbrance  on  said  lands,  and 
shall  call  upon  sucii  person  to  set 
forth  and  specify  his  title,  claim  or 
encumbrance,  and  iiow  and  by  what 
instrument  the  same  is  derived  or 
created.  Rev.,  "Tilks,"  §  1.  Before 
this  statute  tlie  Court  of  Chancery 
assumed  jurisdiction  to  (juiet  the  pos- 
session of  a  party  to  prevent  litigation 
at  law,  only  in  case  the  complainant 
had  satisfactorily  estalilished  his  right 
at   law,   or   wliore   llie   persons   who 


controverted  the  right  were  so  numer- 
ous as  to  render  an  issue  under  the 
direction  of  the  court  necessary  to 
bring  in  all  the  parties  concerned, 
and  to  prevent  a  multiplicity  of  suits. 
Paierson  R.  R.  Co.  v.  Jersey  City,  1 
Stock.  434 ;  Jackson  v.  Darcy,  Sax. 
194 ;  Be  Groat  v.  Receivers,  2  Gr,  Ch. 
198;  Thompson  v.  Engle,  3  Gr.  Ch. 
271 ;  Black  v.  Shrere,  3  Hal.  Ch.  440. 
Quiet  occupation  under  claim  of  title 
gives  the  complainant  standing  in 
court  under  the  act.  The  act  does 
not  require  that  he  have  title  by  pos- 
session, or  the  right  to  possession,  or 
even  adverse  possession.  And  that 
the  adverse  claimant  is  a  tenant  in 
common  does  not  qualify  the  posses- 
sion or  aflfect  the  right  to  an  issue. 
Powell  V.  Mayo,  9  C  E.  Gr.  178; 
Beale  v.  Blake,  18  Stew.  Eq.  668. 
Possession  in  fact,  as  distinguished 
from  that  constructive  possession 
which  arises  ))y  virtue  of  the  legal 
title,  is  essential  to  a  proceeding  under 
this  statute.  Sheppard  v.  Nixov,  16 
Stew.  Eq.  627.  Under  this  statute 
there  is  no  authority  to  settle  the 
title  to  an  incorporeal  hereditament 
claimed  by  the  complainant  to  exist 
in  lands  lield  in  possession  by  the  de- 
fendant. Whitlock  v.  Qreacen,  3  Dick. 
Ch.  Rep.  .359. 


616  FORMS   OF   PLEADINGS. 

in  fee  simple,  the  following- described  tracts  and  parcels  of  land 
and  premises  in  the  city  of  ,  in  the  county  of  ,  and 

State  of  New  Jersey,  which  were  distinguished  and  numbered 
in  said  deed  as  lots  numbered  ,  which    were   therein 

described  aud  bounded  as  follows :  {describe  the  premises.) 

That  on  or  about  the  day  of  ,  eighteen  hundred 

and  ,  your  orator  purchased  of  ,  and  ,  her 

husband,  for  a  full  valuable  consideration,  and  said  and 

her  said  husband  conveyed,  by  a  deed  containing  full  covenants 
of  warranty  and  seisin,  to  your  orator  in  fee  simple,  another 
tract  of  land  and  premises  in  said  city  of  ,  described  as 

follows  :  [describe  the  premises.) 

That  the  said  deeds  are  in  your  orator's  possession  and  ready 
to  be  produced  and  proved  as  may  be  directed ;  aud  that  your 
orator  has,  ever  since  the  recording  of  said  deeds  respectively, 
been  in  the  peaceable  possession  of  the  lands  therein  and  above 
described ;  and  that  at  the  time  of  purchasing  said  lands  and 
taking  said  deeds,  he  believed  and  yet  believes  he  bought  and 
acquired  a  good  title  to  said  lands  in  fee  simple,  and  he  has 
always  claimed  and  does  now  claim  to  own  the  same  accordingly. 

That  your  orator's  title  to  said  lands,  or  some  part  thereof,  is 
denied  and  disputed  by  ,  who  are  the  defendants  in  this 

suit ;  and  they,  said  defendants,  claim,  and  are  claimed  and 
reputed  to  own  said  lands,  or  some  part  thereof,  or  some  interest 
therein ;  and  no  suit  or  action  of  any  kind  whatever  is  pending 
to  enforce  or  test  the  validity  of  such  title  or  claim ;  and  your 
orator  charges  that  such  claims  so  made  by  defendants  are  utterly 
without  foundation,  unjust  and  vexatious. 

That  by  reason  of  such  claim  your  orator's  property  in  said 
lands  is  greatly  affected,  and  the  same  cannot  be  sold  as  they 
otherwise  could. 

That  your  orator,  on  or  about  the  day  of  ,  eighteen 

hundred  and  ,  agreed  with  one  to  exchange  a  part 

of  said  lands  for  certain  lands  of  said  ;  and  although  said 

and  your  orator  both  desired  to  carry  out  said  agreement 
said  refused  and  declined  to  do  so,  on  account  of  the  claim 

made  by  the  said   defendants,  and   his  apprehension  that   he 


TO   QUIET  TITLE.  617 

'might  have  diflficulty  in  disposing  of  the  lots  he,  said  , 

was  to  buy  from  your  orator,  on  account  of  said  defendants' 
said  claim. 

That  your  orator  has  applied  to  said  defendants,  or  some  of 
them,  to  release  and  relinquish  their  said  claim  or  to  bring  in 
some  court  of  law  a  suit  which  would  test  the  validity  thereof, 
and  the  said  defendants  refuse  to  do  either.  And  your  orator 
hoped  that  said  defendants  would  have  complied  with  such 
reasonable  request,  as  in  justice  and  equity  they  ought  to  have 
done. 

In  consideration  whereof,  and  forasmuch  as  your  orator  is 
relievable  only  in  a  court  of  equity,  where  matters  of  this  sort 
are  properly,  and  according  to  the  statutes  of  this  state  in  such 
case  made  and  provided,  cognizable  and  relievable : 

To  the  end,  therefore,  that  said  defendants,  and  every  of  them, 
may,  upon  their  several  and  respective  oaths  or  affirmations,  to 
the  best  of  their  respective  knowledge,  information  and  belief, 
full,  true,  direct  and  perfect  answer  make  to  all  and  singular 
the  matters  aforesaid ;  and  more  particularly  that  they,  and 
every  of  them,  may,  in  manner  aforesaid,  answer  and  set  forth 
specifically  what  title  or  claim  to  said  lands,  or  any  part  thereof, 
or  any  interest  therein,  they,  or  either  of  them,  make  or  claim, 
and  to  what  part  or  what  interest ;  and  further,  how  and  by 
what  instrument  such  title  or  claim  is  derived  or  was  created ; 
and  that  by  the  determination  and  fiual  decree  of  this  court,  the 
rights  of  all  the  parties  to  this  suit  in  and  to  the  lands  herein- 
before set  forth,  and  every  part  thereof,  may  be  fixed  and  settled; 
and  that  your  orator  may  be  decreed  to  have  a  perfect  title 
thereto,  and  the  defendants  to  have  no  estate,  interest  in,  or 
encumbrance  on,  said  lands,  or  any  part  thereof;  and  that  their 
claims  to  the  same  are  unjust,  vexatious  and  void  ;  and  that  your 
orator  may  have  such  other  or  further  relief  in  the  premises  as 
the  nature  of  the  case  may  require  and  as  he  shall  be  entitled  to, 
pursuant  to  the  statutes  in  such  case  made  and  provided. (a) 

(a)  For  proceedings  against  defend-  devisees  or   personal   representatives 

ants   when    it   is   unknown   whether  are  unkm^wi),  &c.,  (Famph.  L.,  1893, 

parties  are  alive  or  dead,  or  if  they  ch.  CXLIf ,)  and  for  forms  of  order 

are  known  or  believed  to  be  dead,  tlie  of  publication,  see  title  "Absent  De- 

. names  and  rer:<idence8  of  their  heirs,  fendants,"  ante. 


618  FORMS   OF   PLEADINGS. 

May  it  please  your  Honor,  the  premises  considered,  to  grant 
to  your  orator  a  writ  of  subpoena,  issuing  out  of  and  under  the 
seal  of  this  honorable  court,  to  be  directed  to  the  said  defendants, 
commanding  them  and  each  of  them  at  a  certain  day  and  under 
a  certain  penalty  therein  to  be  specified,  personally  to  be  and 
appear  before  your  Honor  in  this  honorable  court,  then  and 
there  full,  true,  direct  and  perfect  answer  make  to  all  and  singu- 
lar the  premises,  and  further  to  stand  to,  abide  by  and  perform 
such  order,  direction  and  decree  as  to  your  Honor  shall  seem 
meet  and  as  shall  be  agreeable  to  equity  and  good  conscience. 

And  your  orator  will  ever  pray,  &c. 

{Signature  of  solieitor  and  counsel  with  complainant.) 

Ticket  to  be  issued  with  subpoena  on  bill  to  quiet 

title.(«) 

{Title  of  cause.) 

Sir — The  bill  of  complaint  in  the  above-stated  cause  is  filed 
to  settle  the  title  of  in  and  to  all  that,  &c.,  {describe  land 

in  question  with  precision,)  whereof  the  said  claims  to  be 

the  owner ;  and  you  are  made  a  defendant  thereto,  and  if  you 
claim  any  title  to  or  interest  in  or  encumbrance  upon  said  lands, 
you  are  required  to  answer  said  bill,  but  not  otherwise. 

{Signature  of  solicitor.) 

To 

Feigned  issue  under  the  statute  to  try  title.(6)  Com- 
mencement  as  on  page  246,  ante,  and  add,  for  that  whereas,  on 
the  day  of  ,  eighteen  hundred  and  ,  at  ,. 

in  the  county  of  ,  in  the  State  of  New  Jersey,  a  certain  dis- 

course was  moved  and  had  by  and  between  the  said  and 

(a)  With  the  subpcena  there  shall  must  be  established,  if  contested,  be- 

be  issued  a  ticket  to  each  defendant,  fore  the  court  can  proceed  to  try  the 

describing  the  lands  with   precision,  question  of  title  by  an  issue.     Whit- 

stating  the  object  of  the  suit,  and  that  lock  v.  Greacen,  3  Dick.  Ch.  Eep.  369. 

if  the  defendant  claims  any  title  to  or  The  issue  may  be  tried  in  a  county 

interest  in  or  encumbrance  upon  said  other  than  that  in  which  the  lands  in' 

lands,  he  is  required  to  answer  said  dispute  are  situated  whenever  it  is  so 

bill,  but  not  otherwise.    Rev.,  "Titles"  ordered  by  the  Chancellor.  Rev.  Slip.,. 

^  2.  "Titles,"  I  1. 

(6)  The  fact  of  peaceable  possession 


TO   QUIET  TITLE.  Q19 

others  and  ,  of  and  concerning  a  certain  suit  depending  in  the 

Court  of  Chancery  of  the  State  of  New  Jersey,  wherein  the  said 

is  complainant  and  the  said  and  others  are  defend- 

ants ;  and  upon  that  discourse  a  question  then  and  there  arose 
and  was  debated  between  the  said  and  the  said  , 

whether,  on  the  day  of  ,  eighteen  hundred  and 

,  the  said  ,  the  said  plaintiffs,  or  either  or  which  of 

them,  had  any  estate  or  interest  in  the  following- described  lands, 
situate,  &c.,  (describe  land,)  and  what  such  interest  was. 

And  the  said  plaintiffs  then  and  there  asserted  and  affirmed,^ 
that  they,  the  said  plaintiffs,  were  the  owners  among  themselves 
of  interests  amounting  to  undivided  parts  of  the  said  land 

and  premises,  the  whole  into  equal  parts  to  be  divided ; 

which  said  assertion  the  said  then  and  there  wholly  denied, 

and  asserted  the  contrary  thereof.  And  thereupon,  afterwards, 
to  wit,  on  the  day  and  year  last  aforesaid,  at  aforesaid,  in 

consideration  that  the  said  plaintiffs,  at  the  special  instance  and 
request  of  the  said  ,  had  then  and  there  paid  to  the  said 

the  sum  of  dollars,  lawful  money  of  the  United 

States,  the  said  then  and  there  undertook  and  faithfully 

promised  the  said  plaintiffs  to  pay  them  the  sum  of 
dollars,  like  lawful  money  as  aforesaid,  in  case  the  said  plaintiffs, 
or  either  of  them,  were  the  owners  of  undivided  parts  of 

the  said  land  and  premises,  or  any  part  thereof,  the  whole  into 

equal  parts  to  be  divided  ;  and  the  said  plaintiffs  in  fact 
say,  that  they  were  the  owners  of  the  said  equal  undivided 

parts  of  the  land  and  premises  aforesaid,  on  the  said  •  day 

of  ,  eighteen  hundred  and  ,  and  still  own  the  same, 

whereof  the  said  had  notice. 

Nevertheless,  the  said  ,  not  regarding  his  said  promises 

and  undertakings  by  him  in  form  aforesaid  made,  has  not  as  yet 
paid  the  said  plaintiffs  the  said  sum  of  dollars,  nor  any 

part  thereof,  although  so  to  do  the  said  ,  afterwards,  to 

wit,  on  the  day  aforesaid  and  often  afterwards,  at  afore- 

said, was  by  the  said  plaintiffs  requested,  but  the  same  to  them 
to  pay  he  has  hitherto  altogether  refused  and  since  does  refuse, 
to  the  damage  of  the  said  plaintiffs  dollars,  and  therefore 

they  bring  this  suit.     [Conclude  as  in  form  on  page  248,  ante.} 


€20 


FORMS  OF   PLEADINGS. 


Decree  to  quiet  title  under  the  statute.(a) 

[Title  of  cause.) 
This  cause  coming  on  to  be  heard  in  the  presence  of 
and  ,  of  counsel  with  the  complainant,  [and  ,  of 

counsel  with  the  defendants,  ,  and  the  bill,  answer,  repli- 

cation, proofs  and  exhibits,  and  the  verdict  and  report  on  the 


(a)  No  decree  for  costs  shall  be 
had  in  a  suit  to  quiet  title  under  the 
statute  against  any  defendant  who 
sutlers  a  decree  pro  confesso  against 
him,  or  who  shall  answer,  disclaim- 
ing all  title  to,  interest  in  or  encum- 
brance on  said  lands ;  but  this  court 
shall,  in  such  case?,  without  further 
proof,  decree  that  such  defendant  has 
no  estate  or  interest  in  or  encum- 
brance on  said  lands,  or  any  part 
thereof;  and  any  defendant  who  shall 
by  answer,  duly  verified  by  oath,  deny 
that  he  claims  or  ever  has  claimed,  or 
pretended  to  have  any  estate,  interest 
or  encumbrance  in  or  ujjon  said  lands, 
or  any  part  thereof,  shall  be  entitled 
to  his  costs  in  said  suit.  Eei\,  "Titles," 
\  3.  If  any  defendant  shall  answer, 
claiming  any  estate,  or  interest  in  or 
incumbrance  on  said  lands,  or  any 
part  thereof,  he  shall  in  such  answer 
specify  and  set  forth  the  estate,  inter- 
est or  encumbrance  so  claimed,  and 
if  not  claimed  in  or  upon  tke  whole 
of  said  lands,  he  shall  specify  and  de- 
scribe the  part  in  or  upon  which  the 
same  is  claimed,  and  shall  set  out  the 
manner  in  which  and  the  sources 
through  which  such  title  or  encum- 
brance is  claimed  to  be  derived.  Id., 
\  4,  Upon  application  of  either  party 
an  issue  at  law  shall  be  directed  to 
try  the  validity  of  such  claim,  or  to 
settle  the  facts,  or  any  specified  por- 
tion of  the  facts  upon  which  the  same 
depends,  and  the  Court  of  Chancery 
shall  be  buund  bv  the  result  of  such 


issue,  but  may,  for  sufficient  reasons, 
order  a  new  trial  thereof,  according 
to  the  practice  in  such  cases ;  and 
when  such  issue  is  not  recjuested,  or 
as  to  the  facts  for  which  the  same  is 
not  requested,  the  Court  of  Chancery 
shall  proceed  to  inquire  into  and  de- 
termine such  claims,  interest  and 
estate,  according  to  the  course  and 
practice  of  that  court,  and  shall,  upon 
the  finding  of  such  issue,  or  upon  such 
inquiry  and  determination,  finally 
settle  and  adjudge  whether  the  de- 
fendant has  any  estate,  interest  or 
right  in,  or  encumbrance  upon  said 
lands,  or  any  part  thereof,  and  what 
such  interest,  estate,  right  or  encum- 
brance is,  and  in  or  upon  what  part 
of  said  lands  the  same  exists.  Id., 
\  5.  The  final  determination  and 
decree  in  such  suit  shall  fix  and 
settle  the  rights  of  the  parties  in 
said  lands,  and  the  same  shall  be 
binding  and  conclusive  on  all  parties 
to  the  suit :  but  if  any  defendant 
to  such  suit  shall,  either  at  the  time 
of  the  decree  pro  con^fesso  against 
him  or  at  the  final  decree,  be  an  in- 
fant or  non  compos  mentis,  such  party, 
his  heirs  or  assigns,  at  any  time 
within  two  years  after  the  termina- 
tion of  such  disability,  may  appear 
in  said  suit,  and  apply  for  a  rehear- 
ing, and  thereupon  such  decree  shall 
be  opened  as  against  such  party, 
and  the  cause  may  proceed  as  if  no 
decree  had  been  made  in  the  same 
against  him.     Id.,  §  6. 


TO   QUIET   TITLE.  621 

feigned  issue  heretofore  ordered  in  this  cause  having  been  opened^ 
read  and  considered,  and  the  arguments  of  the  respective  counsel 
having  been  heard,  and  the  Chancellor  having  considered  the 
same,  and  it  appearing  to  his  satisfaction  that  the  defendants, 

,  who  appeared  and  who  filed  the  answer  in  this  cause, 
have  by  their  said  answer  set  up  and  relied  on  certain  claims  to, 
and  estates  and  interests  in,  part  of  the  lands  and  premises  in 
the  bill  of  complaint  in  this  cause  described  as  theirs  and  belong- 
ing of  right  to  them,  and  have,  in  respect  to  the  remainder  of 
said  lands  and  premises,  disclaimed  any  claim  to,  or  estate,  right 
or  interest  in,  the  same.  And  it  further  appearing  that  the  said 
defendants'  said  claim  to  that  part  of  said  lands  and  premises 
which  they  claimed  and  insisted  on  as  aforesaid,  is  not  valid, 
and  that  they  have  not,  nor  have  any  or  either  of  them,  any 
such  estate  or  interest  therein  as  was  so  by  them  claimed  or 
set  up  in  this  cause,  and  no  further  claim  being  set  up  by  said 
answers,  or  otherwise,  or  now  appearing,  and  the  complainant 
appearing  to  be  entitled  to  the  relief  prayed  in  his  bill :]  {If  the 
decree  be  ex  parte,  omit  the  clause  above  in  brackets  and  follow  the 
forms  substantially  of  a  decree  pro  confesso,  on  page  34.)  It  is, 
on  this  day  of  ,  eighteen  hundred  and  ,  by 

,  Chancellor  of  the  State  of  New  Jersey,  ordered,  adjudged 
and  decreed,  and  the  said  Chancellor,  by  virtue  of  the  power  and 
authority  of  this  court,  does  hereby  order,  adjudge  and  decree, 
[that  as  to  those  portions  of  the  lands  and  premises  in  said  bill 
described,  to  which  the  said  defendants  disclaimed  by  their 
answers  any  claim,  that  is  to  say,  (describe  premises,)  the  said 
defendants,  and  each  of  them,  have  no  estate,  interest  in,  or 
encumbrance  upon,  the  same,  or  any  part  thereof.] 

It  is  not  necessary  that  there  should  appeal   sliall   be   made  within    three 

be  proof  to  warrant  a  decree  against  months  after    making    such    decree, 

an    infant    defendant.      The   statute  Wliere  the  person  entitled  to  appeal 

saves  the  rights  of  an  infant.  Jianyon,  shall  be  an  infant, /erne  covert  or  in- 

C,  1884,  sane,   he    or    she   shall    have   tliree 

All   persons  aggrieved  by  a   final  months   to   bring  such  appeal   after 

decree  made  upon  bill  filed  to  (juiet  such    disability    shall    be    removed, 

title  to  lands  may  appeal   from  the  Pamph.  L.,  1888,  j)-  381. 
same  or  any  part   tliereuf,  but  such 


€22  FORMS   OF   PLEADINGS. 

[And  further,]  that  as  to  [that  portion  of]  the  lands  and 
premises  aforesaid  to  which  said  defendants  made  claim  as  afore- 
said, to  wit,  {describe  premises,)  the  said  defendants,  and  each 
and  every  of  them,  have  no  estate,  interest  in,  or  encumbrance 
upon,  the  same,  or  any  part  thereof. 

And  that  in  respect  to  all  said  lands  and  premises,  so  far  as 
relates  to  any  claim  thereon  by  or  on  behalf  of  any  of  the  herein- 
before-mentioned defendants,  the  title  of  the  complainant  in  and 
to  the  same,  and  every  part  thereof,  is  hereby  determined,  fixed 
and  settled,  and  declared  to  be  good ;  [and  that  the  defendants 
do  pay  to  the  complainant  his  costs  of  suit  to  be  taxed,  and  that 
he  have  execution  therefor,  according  to  the  rules  and  practice  of 
this  court.]  {If  the  decree  be  ex  parte,  omit  the  parts  above  in 
brackets.) 


DOWER.(a) 

Bill  for  dower. 

In  Chancery  of  New  Jersey. 

To  his  Honor  .    ,  Chancellor  of  the  State  of  New  Jersey  : 

Complaining,  shows  unto  your  Honor  your  orator,  , 

of  the  city  of  ,  county  of  ,  and  State   of  New 

Jersey,  that  your   oratrix  was  married  on  the  day  of 

(a)  Whatever  difference  of  opinion  JE.    Or.  204;    Ocean  Beach  Ass'n   v. 

on  the  subject  might  at  one  time  have  Brinley,   7   Slew.  Eq.  439  ;   4   Kent's 

existed,  the  jurisdiction  of  chancery  Com.  71;  1  Story's  Eq.  Jur.,  §  624,  ch. 

over  the  claim  of  dower  is  now  defi-  12.     It  is  indispensable  in  many  cases 

nitely  established.    It  is  a  jurisdiction  for  the  sake  of  discovery  by  the  oath 

concurrent  with    that   at    law  ;    and  of  the  defendant  as  to  the  property, 

when  the  legal   title  to  dower  is  in  its  nature  and  the  encumbrances  upon 

controversy,  it  must  be  settled  at  law ;  it,  and  sometimes  for  an  account  of 

yet  where  the  title  is  admitted,  but  the  rents  and  profits,  that  the  juris- 

impediments  are  thrown  in  the  way  diction  of  chancery  should  be  main- 

of  the  widow  proceeding  at  law,  chan-  tained.      Hartshorne     v.     Hartshorne, 

eery  can  assume  jurisdiction  and  give  supra.     One   advantage   resulting  to 

her  relief  for  her  dower.     Hartshorne  the  widow  by  proceeding  in  equity  is 

V.   Hartshorne,    1    Gr.    Ch.   349,   and  that  she  is  thereby  enabled  to  bring 

xases    cited;    Rockwell    v.  Morgan,    2  before  the  court  all  the  parties  inter- 

^eas.  384;  Palmer  v.  Casper  son,  2  C.  ested    in    the  subject-matter   of    her 


DOWER. 


623 


,  eighteen  hundred  and  ,  to  ,  of  ,  in 

the  State  of  New  Jersey,  and   resided  with  her   husband  in 
until  his  death. 
That  he  died  in  on  the  day  of  ,  eighteen 

hundred  and  ,  intestate  and  without  issue ;  administration 

on  his  estate  was  granted  to   our  oratrix  and  by  the 

surrogate   of  the   county  of  ,  in  this   state;    and  said 

administrators  have  taken  upon  themselves  the  burthen  of  such 
administration. 

That  at  the  time  of  his  death,  and  for  a  number  of  years  prior 
thereto,  he  was  engaged  in  trade  as  a  member  of  the  firm  of 
&  ,  dealers  in  ;  the  members  of  said  firm 

were  and  ;  is  the  surviving  partner,  and  all 

the  assets,  real  as  well  as  personal,  of  said  firm,  are  in  the  hands 
and  possession  of  said  surviving  partner. 

That  in  addition  to  real  estate  belonging  to  said  firm,  said 

was  seized  in  severalty  of  the  tracts  of  land  hereinafter 

-described ;  his  heirs  are  his  brothers,  ,  (who  is  married, 

and  whose  wife's  name  is  ,)  and  ,  (unmarried,)  and 


claim,  and  to  have  tlieir  conflicting 
rights  fully  settled.  2  Scribner  on 
Dower  146.  A  widow  who  has  dower 
by  the  judgment  of  a  court  which 
cannot  award  her  damages  or  com- 
pensation for  mesne  profits  may 
maintain  a  suit  in  equity  for  their 
recovery.  Shields  v.  Hunt,  12  Stew. 
Eq.  485.  Where  there  are  no  con- 
flicting claims  to  or  interests  in  the 
property,  the  present  owner  is  the 
only  necessary  party  defendant,  even 
though  the  lands  have  come  to  him 
through  several  intermediate  convey- 
ances. Blair  v.  Thompson,  11  Gratt. 
441.  If  the  right  of  the  widow  be 
admitted  by  the  answer,  the  court 
will  proceed  at  once  to  assign  the 
dower  and  to  take  an  account  of  the 
arrears,  if  the  case  be  a  proper  one 
for  an  account.  Mundy  v.  Mundy,  2 
Tfts.,  Jr.,  12'J.  As  equitable  estates 
are  not  recognized  in  the  courts  of 
law,  it   results  that  courts  of  equity 


have  exclusive  jurisdiction  of  claims 
for  dower  in  this  species  of  estates. 
McMahon  v.  Kimball,  3  Black/.  1. 
The  right  of  dower  being  established, 
and  the  estate  out  of  which  the  wife 
is  dowable  ascertained,  the  next  step 
is  to  assign  the  dower.  This  may  be 
done  either  by  reference  to  a  master 
or  by  directing  a  commission  to  issue. 
2  Dan.  Ch.  Pr.  1166;  Goodenough  v. 
Ooodenough,  2  Dick.  795.  Where  the 
husband,  though  seized,  did  not  die 
seized  of  the  estate,  the  Avidow  is  enti- 
tled to  dower,  and  the  alienee  of  the 
husband  is  liable  for  mesne  profits 
only  from  the  time  of  demand,  or  if 
no  demand  be  made,  from  the  time  of 
filing  the  bill.  Chixwell  v.  Morris,  1 
McCart.  101.  A  commission  to  assign 
dower  is  nearly  in  tlie  same  form  and 
is  made  out,  executed  and  returned  in 
the  same  manner  as  a  commission  in 
partition.     2  Dan.  Ch.  Pr.  1166. 


624  FORMS  OF   PLEADINGS. 

his  sister,  ,  (who  is  married,  and  whose  husband's  name  is 

,)  to  whom  those  lands  descended  on  his  death,  and  by 

whom  they  are  now  held  as  tenants  in  common.     The  said  heirs 

are  now  in  possession  of  said  lands,  and  receive  the  rents  thereof. 

That  at  the  time  of  his  death,  said  was  seized  in  fee  in 

severalty  of  the  following  lands  in  the  county  of  ,  being 

all  his  real  estate  except  his  interest  in  the  real  assets  of  said 
partnership :  {describe  the  premises.) 

That  all  of  the  said  real  estate  of  said  firm  was  taken  in  pay- 
ment of  debts  due  to  the  said  firm  in  course  of  the  partnership 
business. 

That  the  said  administrators  of  ,  deceased,  claim  that 

all  of  said  real  estate  of  said  firm  is  personal  assets ;  and  that 
they  are  entitled  to  said  's  interest  therein,  or  in  the  pro- 

ceeds of  sale  thereof;  and  that  your  oratrix  is  not  entitled  to 
any  dower  therein  or  in  any  part  thereof. 

That  the  heirs  of  said  deceased  refuse  to  assign  and  set  apart 
the  dower  of  your  oratrix,  and  do  not  properly  account  for  the 
rents,  issues  and  profits  of  the  said  lands. 

Your  oratrix  is  advised  that  she  can  only  have  adequate  relief 
in  the  premises  in  this  court. 

To  the  end,  therefore,  that  the  defendants  hereinafter  named 
may  [without  oath]  answer  all  and  singular  the  premises ;  and 
that  the  defendants,  heirs  of  ,  deceased,  may  answer  and 

discover  what  real  estate  belonged  to  him  at  the  time  of  his 
death,  and  what  estate  or  interest  he  had  therein,  and  the  value 
thereof,  and  the  rental  value,  and  what  encumbrances  existed 
thereon  ;  and  that  said  heirs  may  also  discover  what  rents,  issues 
and  profits  they  have  received  from  said  real  estate,  and  may 
account  therefor,  and  may  be  decreed  by  this  court  to  pay  to 
your  oratrix  so  much  thereof  as  she  may  be  entitled  to  for  her 
dower ;  and  that  said  may  set  forth  and  discover  what 

lands  were  the  property  of  said  firm  of  &  ,  at  the 

time  of  said  's  death,  and  the  value  thereof,  and  the  rental 

value  and  the  encumbrances  thereon,  and  the  rents  collected 
since  his  death ;  and  that  it  may  be  settled  and  declared  by  the 
decree  of  this  court  in  what  lands  your  oratrix  has  dower,  and 
whether  she  has  dower  in  the  real  estate  of  said  firm  of 


DOWER.  625 

And  that  her  dower  may  be  set  apart  and  assigned  to  her 
under  the  direction  of  this  court;  and  that  your  oratrix  may 
have  such  further  or  other  relief  as  the  nature  of  the  case  may 
require. 

May  it  please  your  Honor,  &c.,  {add  prayer  for  subpoena.) 
{Signature  of  solicitor  and  counsel  with  complainant.) 

Decree  for  dower  and  reference  to  a  master. (a) 

{Title  of  cause.) 

This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  *  no  person  appearing  on  behalf  of  the 
defendant,  the  bill  of  complaint  herein  having  been  heretofore 
taken  as  confessed  against  him,  {or  after  "'^y  "and  it  appearing 
that  the  defendant  has  filed  his  answer  admitting  the  right  of 
the  complainant  to  dower  in  the  lands  mentioned  and  described 
in  the  bill  of  complaint  herein : ")  It  is,  on  this,  &q.,  ordered  and 
decreed  that  the  complainant  is  entitled  to  dower  in  the  lands 
whereof  her  husband,  the  said  ,  died  seized;   and  it  is 

further  ordered,  that  *  it  be  referred  to  ,  one  of  the  mas- 

ters of  this  court,  to  ascertain  and  report  of  what  lands  the  said 
died  seized  wherein  the  said  complainant  is  dowable,  and 
the  said  master  is  to  assign  to  the  complainant  her  dower  in  such 
lands  and  tenements,  and  is  to  assign  and  set  out  particular  lands 
and  tenements  for  that  purpose.(6) 

If  a  commission  is  to  be  issued  to  assign  the  dower,  after  the  * 
say,  and  and  ,  of  the  county  of  ,  be 

and  they  are  hereby  appointed  commissioners  to  assign  and  set 
out  dower  for  the  said  complainant  out  of  all  and  singular  the 

(a)  A  widow  wlio  remains  in  and  band.     McLaughlin  v.  McLavghliv,  7 

holds  and  enjoys  the  mansion-house  C.   E.    Gr.   505.      Interest    was    not 

of  her  husband  before  her  dower  is  allowed  on  arrears  of  dower.     Lind- 

assigned  to  her  by  the  statute  is  not  my  v.  Gibbon,  3  £ro.  495 ;   Wakefield 

bound  to  pay  taxes,  interest  or  encum-  v.  Ckilds,  1  Fonbl.  23. 
brances  or  for  repairs.     Spinning  v.  (6)  The  practice  is  to  decree  the 

Spinning,  16  Slew.  Eq.  215.     Nor  can  dower  to  be  set  out  by  the  master  or 

she  be  required  to  account  for  the  to    grant     a    commission    to    assign 

rent  of  such  house  in  case  she  claims  dower.     See  Swaine  v.  Ferine,  5  Johns. 

damages   for    the   detention    of    her  Ch.  487. 
dower  in  the  other  lands  of  her  hus- 

2p 


626  FORMS   OF   PLEADINGS. 

lands  being  lately  the  estate  of  ,  deceased,  described  as  fol- 

lows, to  wit,  {describe  premises,)  according  to  law  and  the  course 
of  this  court. 

And  it  is  further  qrdered,  that  after  the  said  lands,  &c.,  shall 
have  been  so  set  out  and  ascertained,  and  the  report  thereof  shall 
have  been  approved  hf  this  court,  the  said  defendant  do  deliver 
possession  to  the  complainant  of  the  lands  and  tenements  that 
shall  be  so  set  out  and  assigned  for  the  said  dower,  and  the  ten- 
ants thereof  are  to  attorn  and  pay  their  rents  to  the  said  {com- 
plainant.) 

The  following  may  be  added  to  the  reference  to  the  master  when 
appropriate:  And  it  is  further  ordered,  that  the  said  master  take 
an  account  of  the  rents  and  profits  of  the  said  lands  whereof  the 
said  died  seized,  accrued  since  the  death  of  the  said  , 

which  have  been  received  by  the  said  defendant,  or  by  any  other 
person,  by  his  order  or  for  his  use ;  and  that  one-third  part  of 
what  shall  be  coming  on  said  account  of  the  rents  and  profits  of 
said  lands,  be  paid  to  the  complainant  by  the  said  defendant  in 
respect  of  her  dower  out  of  such  lands.(a) 

And  for  the  better  taking  the  said  account  and  discovery  of 
the  matters  aforesaid,  the  said  defendant  is  to  produce  before  the 
said  master,  upon  oath,  all  deeds,  writings,  papers  and  books  of 
account  in  his  custody  or  power,  relating  to  the  matters  in  ques- 
tion, and  both  sides  are  to  be  examined  upon  interrogatories  as 
the  said  master  shall  direct,  and  the  said  master  is  to  make  unto 
both  sides  all  just  allowances. 

And  it  is  further  ordered,  that  the  said  defendant  pay  to  the 
complainant  her  costs  of  this  suit  to  this  time  to  be  taxed,  and 
the  consideration  of  subsequent  costs  is  reserved  until  the  master 
shall  have  made  his  report.  (6) 

(a)  In  equity,  if  the   widow   dies  representative  cannot  recover  mesne 

pending  her  bill  for  dower,  her  death  profits.    Pollitt  v.  Kerr,  4  Dick.  Ch. 

does  not  deprive  her  personal  repre-  Rep.  65.     She  is  entitled  in  equity  to 

sentative  of  the  arrears  of  dower,  but  an  account  of  rents  and  profits,  not- 

he  may  revive  the  suit  and  recover  withstanding  the  death  of  the  heir 

mesne    profits.     But    if   no   suit    be  pending  the  suit.     Curtis  v.  Curtis,  2 

pending  in  equity  when  the  widow  Bro.  620. 

dies  her  right  to  damages  dies  with  (b)  For  costs  on  bills  for  dower,  see 

her,  and   in  that   case  her   personal  Beames  on  Costs  35. 


DECREES   AND   ORDERS.  627 

Commission  to  assign  and  set  out  dower  (a)  The 
State  of  New  Jersey  to  {three  commissioner s) — Greeting :  Know 
ye,  that  we,  in  confidence  of  your  prudence  and  fidelity, 
[l.  s.]  have  appointed  you,  and  by  these  presents  do  give  unto 
you,  full  power  and  authority,  in  pursuance  of  a  decree 
of  our  Court  of  Chancery,  made  in  a  certain  cause  therein 
depending,  wherein  is  complainant  and  is  defendant, 

bearing  date,  &c.,  to  assign  and  set  out  dower  for  the  said  com- 
plainant out  of  all  and  singular  the  lands  being  lately  the  estate 
of  ,  deceased,  in  the  said  decree  mentioned,  described  as 

follows,  to  wit,  {describe  premises.) 

Therefore,  we  command  you,  that  you  meet  at  certain  times 
and  places  to  be  appointed  by  you  for  that  purpose,  and  to  come 
unto,  inspect  and  view  the  aforesaid  lands  and  premises  where- 
soever they  shall  be  found  to  be  situate,  lying  or  being,  and 
according  to  the  best  of  your  skill  and  judgment  to  assign  and 
set  out,  by  metes  and  bounds,  dower  for  the  said  complainant 
out  of  the  aforesaid  land  and  premises,  and  doing  in  all  and 
singular  the  premises  according  to  the  true  intent  and  meaning 
of  these  presents  and  of  the  said  decree. 

And  when  you  shall  have  so  done,  you  are  to  certify  and 
return  into  our  Court  of  Chancery,  at  Trenton,  without  delay, 
your  acts  and  proceedings  in  the  premises,  by  your  certificate, 
distinctly  and  plainly  written,  under  your  seals,  together  with 
this  writ. 

Witness,  &c. 


SPECIAL  DECREES  AND  DECRETAL  ORDERS. 

Interlocutory  decree  on  a  bill  for  an  account  be- 
tween partners. 

{Title  of  cause.) 

This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  it  appearing  that  the  bill  of  com- 

(a)  Where  a  commission  issues  to       proceedings   tiiereon,  are   similar   to 
assign  dower,  the  practice  as  to  the      those  on  commissions  for  partition, 
-execution    thereof,  and    all    further 


628  FORMS   OF   PLEADINGS. 

plaint  herein  was  heretofore  taken  as  confessed  against  the 
defendant  :(a) 

It  is  thereupon,  on  this  day  of  ,  eighteen  hundred 

and  ,  ordered  and  decreed,  that  it  be  referred  to  , 

one  of  the  special  masters  of  this  court,  to  take  a  mutual  account 
of  all  dealings  and  transactions  between  the  complainant  and 
defendant  as  partners  in  said  bill  mentioned ;  for  the  better 
clearing  of  which  account  the  parties  are  to  produce  before  the 
said  master,  upon  oath  or  affirmation,  if  required,  and  leave 
with  him,  all  books  and  writings  in  their  custody  or  power 
relating  thereto,  and  are  to  be  examined  upon  interrogatories, 
as  the  said  master  shall  direct ;  and  said  master  is  also  to  have 
power  to  examine  other  witnesses  in  relation  to  said  account; 
and  in  taking  of  said  account,  he  is  to  make  to  both  parties  all 
just  allowances ;  and  is  to  report  what,  upon  such  accounting, 
appears  to  be  due  from  each  party  to  the  other ;  and  also  the 
balance  which,  upon  the  said  account,  shall  appear  to  be  due 
from  either  party  to  the  other. 

And  the  said  master  is  to  make  his  report  touching  the  mat- 
ters hereby  referred  to  him,  with  all  convenient  speed.  And  if 
in  taking  the  said  account,  any  special  matter  shall  arise,  he  is 
at  liberty  to  state  the  same  to  the  court. 

Interlocutory  decree  on  bill  by  first  mortgagee 
(and  purchaser  under  foreclosure)  to  compel  second 
mortgagee  to  redeem.(6) 

{Title  of  cause.) 
This  cause  coming  on  to  be  heard  before  the  Chancellor  upon 
bill,  answer,  replication  and  proofs,  in  the  presence  of  ,  of 

counsel  with  the  complainant,  and  of  ,  of  counsel  with 

(a)  A  defendant  who  has  permitted  (6)  A  purchaser  (first  mortgagee) 

a  bill  for  account  against  himself  and  at  a  sale  under  a  foreclosure  suit  upon 

his  partner  to  be  taken  as  confessed,  his  mortgage,  to  which  suit  a  second 

cannot  question  his   liability  to  ac-  mortgagee  was  by  oversight  not  made 

count    by    excepting    to    a   master's  a   party,   is   entitled    to   require  the 

report  which,  pursuing  the  order  of  second  mortgagee  to  redeem  in  a  rea- 

reference,  holds  him  liable  to  account.  sonable  time  or  be  foreclosed.   Parker 

Miller  v.  Howard,  11  C.  E.  Gr.  166.  v.  Child,  10  C.  E.  Or.  41.    The  Chan- 


DECREES  AND  ORDERS,  629 

the  defendant,  ,  and  the  pleadings  and  proofs  having  been 

read,  and  the  arguments  of  counsel  heard  and  considered,  and 
the  Chancellor  being  of  the  opinion  that  the  complainant  is 
entitled  to  relief,  and  to  be  redeemed  in  the  premises  by  the 
defendant,  :    It  is  thereupon,  on  this  day  of  , 

eighteen  hundred  and  ,  by  his  Honor  ,  Chancellor 

of  the  State  of  New  Jersey,  ordered,  adjudged  and  decreed,  that 
the  mortgage  of  the  complainant  set  forth  in  his  said  bill,  dated 
the  day  of  ,  eighteen  hundred  and  ,  and 

made  by  to  him  to  secure  the  sum  of  dollars,  with 

lawful  interest  from  date,  is  a  valid  and  subsisting  encumbrance 
as  against  the  said  defendant,  ,  upon  the  lands  and  premises 

therein  and  in  said  bill  described,  prior  to  the  lien  thereon  of  the 
mortgage  of  the  said  ;  and  that  the  judgment  recovered 

by  against  the  said  ,  set  forth  in  said  bill,  is  a  valid 

and  subsisting  encumbrance  upon  the  said  mortgaged  premises 
as  against  said  ,  prior  to  the  lien  thereon  of  the  mortgage 

of  the  said  ;  and  that  the  said  complainant  is  entitled  to 

be  and  he  is  hereby  subrogated  to  all  the  rights  of  in  the 

said  judgment,  and  by  virtue  of  such  subrogation  is  an  equitable 
encumbrancer  upon  said  lands  and  premises  to  the  amount  of 
the  principal,  interest  and  costs  of  said  judgment,  prior  to  the 
lien  thereon  of  the  said  mortgage  of  said  ;  and  that  the 

said  complainant  having  foreclosed  the  equity  of  redemption  of 
the  said  and  ,  his  wife,  in  the  said  mortgaged  lands 

and  premises,  and  being  now  in  possession  of  said  lands  under 
said  mortgage  and  judgment,  and  a  decree  of  foreclosure  thereon, 
is  entitled  to  be  redeemed  by  the  said  defendant,  ,  by  pay- 

ment of  the  amounts  of  principal  and  interest  severally  due  to 
the  said  complainant,  and  secured  by  the  mortgage  and  judg- 
ment aforesaid,  or  in  default  of  such  redemption,  to  a  decree  of 
strict  foreclosure  against  the  said  defendant,  ;  and  that 

the  said  defendant,  ,  if  he  elects  to,  and  do  so  redeem  the 

fiaid  complainant,  is  entitled  to  an  account  against  the  said  com- 

^ellor,  after  an  appeal  from  an  inter-  being  set  aside  if  the  interlocutory 

locutory  order,  may  proceed  to  final  order  shall  be  reversed  by  the  higher 

hearing  according  to  tlie  rule  of  this  court.     Barton  v.  Lowj,  18  Stew.  Eq. 

court;    but    the   party    taking    such  IGO. 
£nal  decree  will  run  the  risk  of  its 


630  FORMS   OF   PLEADINGS. 

plainant,  and  to  payment  from  him  of  all  the  net  rents,  issues 
and  profits,  after  deducting  taxes  and  ordinary  repairs,  which 
said  complainant  has  received  from  said  lands  and  premises 
since  he  took  possession  thereof  as  purchaser  under  his  said 
decree  of  foreclosure. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the  said 
complainant  do  forthwith  serve  upon  the  defendant,  ,  or 

his  solicitor,  a  copy  of  this  decree ;  and  that  within  thirty  days 
after  such  service,  the  said  defendant  do  serve  upon  the  solicitor 
of  the  complainant  his  election  to  redeem  the  said  complainant  in 
the  premises  upon  the  terms  of  this  decree  ;  and  in  the  event  that 
the  said  defendant  shall  so  serve  notice  of  such  election,  that  upon 
such  service  the  complainant  be  at  liberty  to  apply  ex  parte  to 
this  court,  for  such  order  of  reference  and  for  an  account  in  the 
premises,  as  he  may  be  advised ;  and  that  in  the  event  that  the 
said  defendant  shall  fail  so  to  serve  notice  of  his  election  to 
redeem  as  aforesaid,  the  said  complainant  shall  be  entitled  to, 
and  shall  be  at  liberty  to  apply  ex  parte  for  a  decree  of  strict 
foreclosure  against  him. 

Decree  for  specific  performance  against  adminis- 
trators and  heirs-at-law. 

{Title  of  cause.) 
This  cause  coming  on  to  be  heard,  Ac,  and  it  satisfactorily 
appearing  to  the  court  that  by  virtue  of  an  agreement  in  writ- 
ing, duly  made  and  executed,  between  ,  the  complainant, 
and  ,  now  deceased,  in  his  lifetime,  on  the  day 
of  ,  in  the  year  one  thousand  eight  hundred  and  , 
the  said  agreed  to  purchase  of  the  said  complainant  a 
certain  farm  and  tract  of  land,  in  the  said  bill  mentioned  and 
described  as  follows,  to  wit,  {insert  description  of  premises  by 
metes  and  bounds,)  and  to  pay  him  therefor  the  sum  of 
dollars,  in  two  equal  payments,  one  payment  of  dollars  to 
be  made  on  the  day  of  ,  in  the  year  one  thousand 
eight  hundred  and  ,  when  the  said  complainant  was  to 
execute  and  deliver  to  him,  his  heirs  and  assigns,  a  good  and 
sufficient  deed  for  the  said  premises,  and  also  possession  of  the 
said  premises ;  the  remaining  sum  of              dollars  to  be  paid 


DECREES   AND   ORDERS.  631 

on  the  day  of  ,  one  thousand  eight  hundred  and 

;  and  it  further  appearing  that  the  said  departed 

this  life  on  the  day  of  ,  eighteen  hundred  and 

,  intestate,  and  that  the  said  defendants  are  his  adminis- 
trators and  heirs-at-law,  and  that  the  said  ,  the  complain- 
ant, has  always  been,  and  still  is,  ready  and  willing,  in  all  things, 
to  comply  with  the  stipulations  of  the  said  articles  of  agreement 
on  his  part,  and  has  prayed  the  order  or  decree  of  this  court 
directing  the  defendants  to  comply  with  and  fulfill  the  same  in 
all  things  on  their  part,  in  the  place  and  stead  of  the  said  I 
and  the  Chancellor  being  of  opinion  that  the  complainant  is 
entitled  to  the  specific  performance  of  the  said  article  of  agree- 
ment on  the  part  of  the  said  administrators  and  heirs-at-law  of 
the  said  ,  deceased,  as  in  his  said  bill  he  has  prayed  :  It 
is,  on  this,  &c.,  ordered,  adjudged  and  decreed,  that  the  said 
articles  of  agreement  be  in  all  things  specifically  performed  by 
the  said  defendant  and  the  said  administrators  and  heirs-at-law 
of  ,  deceased,  respectively,  and  that  the  said  defendant  do, 
within  days  from  the  date  of  this  decree,  make,  execute 
and  acknowledge,  in  due  form  of  law,  and  deliver  to  the  heirs- 
at-law  of  the  said  ,  deceased,  a  good  and  sufficient  war- 
ranty deed  for  the  said  premises,  and  that  he  deliver,  at  the  same 
time,  to  the  said  heirs-at-law  possession  of  the  said  premises,  and 
account  to  them  for  the  rents,  issues  and  profits  of  the  same  since 
the  first  day  of  last,  and  that  thereupon  the  said  adminis- 
trators and  heirs-at-law,  defendants  in  this  cause,  do  pay,  or 
cause  to  be  paid,  out  of  the  estate  of  the  said  ,  deceased, 
the  said  sum  of               dollars,  with  interest  thereon  from  the 

day  of  last  past,  and  that  the  rest  of  the  said  sum 

of  dollars,  to  wit,  the  sum  of  dollars,  be  and 

remain  a  specific  lien  upon  the  said  premises,  payable  on  the 

day  of  next  ensuing,  and  until  the  same  shall  be 

paid  and  satisfied.  And  it  is  further  ordered,  that  the  costs  of 
the  complainant  and  of  the  said  administrators,  defendants  in 
this  suit,  be  paid  out  of  the  estate  of  the  said  ;  and  the 

complainant  is  to  serve  a  copy  of  this  decree  upon  the  defend- 
ants, or  their  solicitor,  within  ten  days  from  the  date  hereof,  and 
either  party  is  to  be  at  liberty  to  apply  to  this  court  for  further 
directions  or  relief  in  the  premises,  if  occasion  shall  require. 


632  FORMS  OF   PLEADINGS. 

Decree  establishing  a  will.(a) 
{Title  of  cause.) 

This  cause  coming  on  to  be  heard,  &c.,  and  it  appearing  that 
,  deceased,  in  the  pleadings  in  the  cause  mentioned,  on  or 
about  the  day  of  ,  in  the  year,  &c.,  duly  made, 

executed  and  published  his  last  will  and  testament  in  writing, 
in  due  form  of  law,  to  pass  real  and  personal  estate,  and  after- 
wards departed  this  life,  leaving  the  said  last  will  and  testament 
unrevoked  and  in  full  force ;  that  the  said  last  will  and  testa- 
ment was  afterwards  taken  away  or  destroyed  by  some  person 
or  persons  unknown  ;  and  that  the  contents  thereof  have  been 
fully  and  satisfactorily  proved  by  the  evidence  in  this  cause; 
and  that  the  said  will  ought  to  be  established  in  all  its  parts,  by 
the  order  and  decree  of  this  court.  And  it  further  appearing, 
to  the  satisfaction  of  the  court,  that  in  and  by  the  said  last  will 
and  testament,  so  made  and  executed  as  aforesaid,  the  said  testa- 
tor devised  and  bequeathed  as  follows,  to  wit :  to  his  son  {here 
insert  the  devises  and  bequests  as  proved,)  and  that  the  said  testa- 
tor, in  and  by  his  said  last  will  and  testament,  appointed 
and  executors  thereof;  and  no  cause  being  shown  or 

appearing  why  the  said  last  will  and  testament  should  not  be  in 
all  things  fully  established:  It  is,  &c.,  ordered,  adjudged  and 
decreed  that  the  said  last  will  and  testament,  so  made,  executed 
and  published  as  aforesaid  by  the  said  ,  and  all  the  devises, 

bequests  and  appointments  therein  contained,  as  herein  above 
particularly  set  forth,  be  and  the  same  are  hereby  established  in 
all  things  and  in  all  parts ;  and  that  the  said  several  devisees 
and  legatees  aforesaid  take,  hold,  occupy,  possess  and  enjoy  their 
several  and  respective  devises  and  legacies,  as  fully  and  effect- 
ually, to  all  intents  and  purposes  whatsoever,  as  they  might, 
could  or  would  have  taken,  held,  occupied,  possessed  and  enjoyed 
the  same,  if  the  said  last  will  and  testament  had  not  been  taken 
or  destroyed,  and  had  been  duly  proved  according  to  law. 

And  it  is  further  ordered,  that  a  transcript  of  the  record  of 
these  proceedings  be  transmitted  to  the  surrogate  of  the  county 

(a)  Probate  of  the  will  may  be  had  the  surrogate,  who  will  file  and  record 
upon  the  production  of  a  certified  the  same  in  his  office  and  thereupon 
copy  of  the  record  of  the  decree  to       grant  probate  thereof. 


DECREES   AND   OKDERS.  633 

of  ,  to  the  end  that  letters  testamentary  to  the  executors 

named  in  said  will  may  be  issued  to  them  if  they  do  not  renounce 
the  execution  of  the  trusts  therein  contained. 

And  it  is  further  ordered,  that  the  costs  of  the  complainants 
and  defendants  in  this  cause  be  and  the  same  are  hereby  ordered 
to  be  paid  by  the  said  executors  out  of  the  testator's  estate. 

Decree  annulling  a  deed,  &e. 

(Title  of  cause.) 
Proceed  as  in  common  form  to  the  end  of  first  line  on  page  180, 
and  add,  that  the  said  deed,  so  as  aforesaid  made  by  the  said 
to  the  said  ,  bearing  date  the  day  of  ,  in  the  year 

one  thousand  eight  hundred  and  ,  for  the  premises  in  the 

said  pleadings  and  proofs  mentioned,  is  and  was,  from  the  time 
of  the  execution  and  delivery  of  the  same,  null  and  void  and  of 
no  force  or  effect  whatsoever,  in  law  or  equity,  and  that  the  said 
do,  on  service  of  a  copy  of  this  decree,  deliver  up  the 
said  deed  to  the  complainant  to  be  canceled,  and  that  he  do  also 
deliver  up  to  the  said  complainant  the  possession  of  the  said 
premises  now  held  by  him,  together  with  all  deeds,  muniments 
of  title  and  writings  in  his  custody  or  power  relating  to  the  said 
premises,  and  that  the  said  defendant,  ,  do  also  reconvey 

the  said  premises  to  the  said  complainant,  free  and  clear  of  and 
from  all  encumbrances  done  by  him,  or  any  claiming  by,  from 
or  under  him.  And  it  is  further  ordered,  adjudged  and  decreed, 
that  the  said  defendant,  ,  do  pay  to  the  said  complainant 

her  costs  in  this  cause  to  be  taxed.  And  it  appearing  to  the  court 
that  the  said  defendant,  ,  has  fairly  and  bona  fide  paid  the 

whole  of  the  consideration  money  expressed  in  the  deed  made  by 
the  said  to  the  said  ,  bearing  date  the  day  of 

,  in  the  year  one  thousand  eight  hundred  and  ,  for 

a  part  of  the  said  premises  in  the  said  pleadings  and  proofs 
mentioned,  without  notice  of  the  said  fraud,  and  that  the  said 
consideration  money  went  to  the  use  of  the  creditors  of  the  said 
(the  grantor,)  and  that  the  conduct  of  the  said  ,  in  respect 

thereof,  was  fair  and  bona  fide:  It  is  further  ordered,  adjudged 
and  decreed,  that  the  said  complainant  do  release  unto  the  said 

,  his  heirs  and  assigns,  all  right  and  title  of,  in  and  to  the 


634  FORMS   OF   PLEADINGS. 

said  premises  mentioned  and  described  in  the  said  deed  from  the 
said  to  the  said  .    And  it  is  further  ordered,  adjudged 

and  decreed,  that  the  complainant  may  be  at  liberty  to  apply  to 
this  court  for  execution  and  further  directions,  as  she  may  be 
advised. 

Decree  on  bill  to  cancel  a  mortgage. 

{Title  of  cause.) 
This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  and  upon  reading  the  pleadings  and 
proofs  taken  in  said  cause,  whereby  it  appears  that  the  mortgage 
made  and  executed  by  the  said  and  ,  his  wife,  to 

said  ,  in  his  lifetime,  referred  to  in  the  bill  filed  in  this 

cause,  bearing  date  the  day  of  ,  eighteen  hundred 

and  ,  and  recorded  in  county  clerk's  office,  in  Book 

of  Mortgages,  page  ,  to  secure  the  sum  of 

dollars,  in  years  from  the  date  thereof,  with  interest,  still 

appears  to  be  a  subsisting  lien  upon  the  premises  in  the  said  bill 
of  complaint  particularly  described ;  and  it  further  appearing 
that  the  sum  intended  to  be  secured  by  the  said  mortgage  has 
been  paid  and  satisfied  to  the  said  ,  in  his  lifetime,  but 

that  the  said  mortgage  has  never  been  canceled  of  record ;  and 
it  further  appearing,  that  the  complainant  is  entitled  to  the 
relief  prayed  for  by  him  in  his  said  bill ;  and  upon  reading  and 
filing  the  consent  in  writing  of  the  defendant,  ,  adminis- 

trator of  said  ,  deceased,  that  the  complainant  take  a 

decree  in  this  cause,  without  costs,  against  the  said  defendant : 
It  is  thereupon,  on  this  day  of  ,  eighteen  hundred 

and  ,  by  his  Honor  ,  Chancellor  of  the  State  of 

New  Jersey,  ordered,  adjudged  and  decreed,  that  the  said  mort- 
gage hereinbefore  referred  to  and  described  has  been  fully  paid 
and  satisfied ;  and  it  is  further  ordered,  that  the  same  be  can- 
celed of  record,  and  be  no  longer  a  lien  upon  the  said  premises 
therein  described  against  the  said  complainant,  or  any  person  or 
persons  claiming  by,  from  or  under  him,  and  that  the  said 
defendant  and  all  persons  claiming  by,  from  or  under  him  be 
debarred  and  perpetually  enjoined  from  collecting  money  upon 


DECREES   AND   ORDERS.  635 

the  said  deed  of  mortgage  and  from  setting  up  the  same  against 
the  premises  therein  described. 

Decree  to  reform  a  mortgage,  so  as  to  convey  an 
estate  in  fee  simple.(a) 

(Title  of  cause.) 

This  cause  coming  on  to  be  heard,  upon  the  bill  of  complaint 
and  answer  thereto  filed,  and  it  appearing  to  the  court  that  the 
mortgages  in  said  bill  of  complaint  set  forth,  and  each  of  them, 
were,  as  the  defendants  admit,  drawn,  by  inadvertence,  ignorance 
and  mistake,  in  such  a  manner  as  that  although  it  was  intended 
by  the  parties  that  the  same  should  convey  an  estate  in  fee  simple 
in  the  real  property  therein  described,  no  greater  estate  was 
thereby  conveyed,  by  the  strict  rules  of  the  common  law,  than 
an  estate  for  the  lives  of  the  grantees  :  It  is,  &c.,  on  motion,  &c., 
ordered,  that  the  said  mortgages,  and  each  of  them,  be  reformed 
by  the  substitution  of  the  word  "heirs"  for  the  word  "succes- 
sors," wherever  the  same  occurs  in  either  of  the  said  mortgages, 
in  the  statement  or  description  of  the  estate  thereby  mortgaged, 
as  well  in  the  habendum  clause  therein  as  elsewhere ;  and  that 
the  said  mortgages  shall  be  held,  construed  and  regarded  as  hav- 
ing conveyed  an  estate  in  fee  simple  in  the  said  real  property 
therein  described  respectively,  any  want  of  apt  words  therefor 
in  the  said  mortgages,  and  each  of  them,  as  originally  drawn,  to 
the  contrary  notwithstanding. 

And  it  is  further  ordered,  that  the  said  defendants  do  pay  the 
costs  of  this  suit. 

(a)  Where  an  instrument  is  exe-  v.  Donnelly,  7  Vr.  432;  McMillan  v. 
cuted  which  is  intended  to  carry  into  N.  Y.  Waterproof  Paper  Co.,  2  Steiv. 
execution  an  agreement  previously  E<j.  610.  ^Mortgage  reformed  by  sub- 
entered  into,  but,  by  mistake  of  the  stituting  "heirs"  for  "successors." 
draughtsman,  either  as  to  fact  or  law,  Fish  v.  N.  Y.  Waterproof  Paper  Co.,  2 
it  does  not  fulfill  that  intention,  or  Ste^o.  Eq.  16;  S.  C,  2  Stew.  Eq.  610; 
violates  it,  equity  will  correct  tlie  Randolph  v.  N.  J.  West  Line  R.  R., 
mistake.  Wintermute  v.  Snyder,  2  Cr.  1  Slew.  Eq.  49.  The  reformation  was 
Ch.  489.  Where  the  intention  is  made  under  a  bill  to  foreclose  by  sub- 
manifest,  a  court  of  equity  will  con-  stituting  "heirs"  for  "successors,"  in 
strue  the  deed  so  as  to  give  etiect  to  Fi^h  v.  N.  Y.  Waterproof  Paper  Co.,  2- 
the  intention  of  tlie  parties.     >St«so7i  St(^w.  Eq.  16. 


636  FORMS  OF   PLEADINGS. 

Decree  to  reform  a  trust  deed,  so  as  to  confer  a 
power  of  mortgage.(«) 

( Title  of  cause.) 
This  cause  coming  on  to  be  heard  and  debated,  in  the  presence 
of  ,  of  counsel  with  the  complainants,  in  term  of  , 

in  the  year  one  thousand  eight  hundred  and  ,  before  his 

Honor  the  Chancellor,  whereupon  and  upon  reading  the  plead- 
ings and  proofs  and  the  Chancellor  having  duly  considered  the 
same,  and  the  arguments  of  counsel  thereon,  and  it  appearing 
that  the  said  deed  of  trust  or  settlement,  in  the  pleadings  and 
proofs  in  this  cause  mentioned,  made  and  executed  by  the  com- 
plainant, ,  to  ,  was  made  under  mistake  and  misap- 
prehension of  its  legal  effect ;  that  the  agreement  between  the 
parties  to  the  said  deed  was  that  said  deed  should  contain  a 
power  of  mortgage,  and  also  an  absolute  power  of  sale  with  the 
written  consent  of  the  said  ,  and  that  in  these  respects  said 
deed  was  not  drawn  according  to  the  intention  and  agreement  of 
the  parties  to  it,  and  that  through  said  omission  and  mistake  the 
said  trust  deed  does  not  contain  a  power  of  mortgage  or  sale ; 
and  the  Chancellor  being  of  opinion  that  it  ought  to  contain  a 
power  of  mortgage,  and  also  a  power  of  sale,  in  accordance  with 
the  intention  and  agreement  of  the  parties  to  it :  It  is,  on  this, 

(a)  Equity  will  correct  a  mistake  Morris,  2  Stew.  Eq.  222 ;  S.  C,  3  Stew. 

in  a  deed  so  as  to  make  it  conform  to  Eq.  285.     A  mortgage  sought  to  be 

the  agreement  of  the  parties.     Hen-  reformed  by  a  defendant  can  only  be 

drickson  v.  Ivins,   Sax.  562 ;    Hoyt  v.  done  by  cross-bill.     French  v.  Oriffin, 

Hoyt,  12  a  E.  Gr.  399 ;  see  io.ss  v.  3    C.  E.  Gr.  279.     A  mortgage  will 

Obry,  7  C.  E.  Gr.  52.    Whether  made  not  be  corrected  as  against  a  subse- 

by  the  scrivener  or  inadvertence  of  quent    bona  fide    purchaser  without 

the    parties.      Ibid.;    Wintermute    v.  notice.     Eutgers  v.  Kingsland,  3  Hal. 

Snyder,  2  Gr.  Oh.  489.     The  mistake  Ch.  178,  658 ;   Wheeler  v.  Kirtland,  8 

must  be  clearly  proved.     Graham  v.  C.  E.  Gr.  13 ;  S.  C,  on  appeal,  9  C.  E. 

Berryman,  4  C.  E.  Gr.  29 ;  Burgin  v.  Gr.  552.     A  voluntary  deed  of  trust 

Giberson,    11    C.   E.    Gr.   72.     Parol  executed  under  the  supposition  that 

evidence   is    sufficient.     Chetwood    v.  it  was  revocable  and  intended  so  to  be, 

Britiau,  1   Gr.  Ch.  438 ;  McKehvay  v.  but  reserving  no  power  of  revocation 

Armour,  2  Stock.  115;  but  see  Diiant  and  otherwise  unadvised,  improvident 

V.  Bacot,  2  McCart.  413.     As  to  the  and  contrary  to  the  intention  of  the 

-effect  of  notice  from  the  registry  or  grantor,  was  set  aside  in   Gainsey  v. 

record  of  the  mortgage,  see  Wilson  v.  Mandy,  9  C.  E.  Gr.  243. 
King,    12    C.   E.    Gr.   374;     Gale   v. 


DECREES  AND  ORDERS.  637 

<fec.,  on  motion,  &c.,  ordered  and  decreed,  that  the  said  deed  of 
trust  be  and  it  is  hereby  so  corrected  and  reformed  as  that  the 
trustees  of  the  said  complainant,  ,  or  the  survivor  of  them, 

their,  his  or  her  heirs  or  assigns,  shall  have  power,  at  their,  hi& 
or  her  discretion,  with  the  written  consent  of  the  said  ,  to 

mortgage  the  said  trust  estate,  or  any  part  thereof,  (the  mort- 
gagee not  to  be  liable  to  see  to  the  application  of  the  moneys 
raised  upon  such  mortgage,)  and,  at  their,  his  or  her  discretion, 
with  the  like  written  consent  of  the  said  ,  to  sell  and  con- 

vey said  trust  estate,  or  any  part  or  parts  thereof,  at  any  time  or 
times,  (the  purchaser  or  purchasers  not  to  be  bound  to  see  to  the 
application  of  the  purchase  money,)  and  to  apply  so  much  of  the 
moneys  raised  by  mortgage,  or  by  the  sale  or  sales  of  the  said 
trust  property,  as  may  be  necessary  for  the  purpose,  to  the  pay- 
ment of  the  taxes,  assessments  and  necessary  expenses  upon  and 
in  the  improvement  and  development  of  the  said  estate ;  the  bal- 
ance thereof  to  be  held  upon  the  trust  declared  in  said  deed. 

Final  decree  on  a  mortgage  declared  to  be  usuri- 

^^^'(^)  {Title  of  cause.) 

This  cause  being  opened  to  the  court  by  ,  of  counsel 

with  the  complainant,  the  same  having  been  submitted  to  the 
Chancellor  for  his  opinion  thereon  upon  the  pleadings  and  proofs, 
and  the  Chancellor  having  taken  time  to  advise  thereon,  and 
being  of  opinion  that  the  complainant  is  entitled  to  receive  from 
the  defendants,  on  his  mortgage,  the  sum  of  dollars,  but 

without  interest  thereon,  except  from  the  date  of  this  decree,  and 
without  costs  :  It  is,  on  this,  &c.,  ordered  and  decreed,  that  the 
complainant  is  entitled  to  have  said  sum  of  dollars,  with 

interest  thereon,  as  aforesaid,  raised  and  paid  out  of  the  mort- 
gaged premises. 

And  it  is  accordingly  further  ordered  and  decreed,  that  so 
much  of  the  estate  and  premises  in  the  said  mortgage  and  bill 
of  complainant  in  this  cause  contained  as  will  be  sufficient  to 
raise  and  satisfy  the  said  debt  and  interest,  be  sold,  and  that  a 
writ  of  fieri  facias  do  issue  for  that  purpose  out  of  this  court^ 
directed  to  the  sheriff  of  the  county  of  ,  commanding  him 

(a)  See  liev.,  "Interest,"  §  2,  and  notes. 


638  FORMS   OF   PLEADINGS. 

to  make  sale,  according  to  law,  of  so  much  of  the  said  mort- 
gaged premises  as  will  be  suflBcient  to  satisfy  the  said  debt,  with 
interest  from  the  date  of  this  decree ;  and  that  he  pay  the  same 
to  the  complainant  or  his  solicitor ;  and  that  in  case  more  money 
should  be  raised  by  the  said  sale  than  shall  be  sufficient  to  answer 
such  payment,  such  surplus  money  be  brought  into  this  court, 
and  deposited  with  the  clerk,  to  abide  its  further  order,  unless 
otherwise  previously  disposed  of  by  the  order  of  this  court ;  and 
that  the  said  sheriff  make  return  according  to  law  to  this  court 
of  his  proceedings  by  virtue  of  the  said  writ. 

And  it  is  further  ordered  and  decreed,  that  the  defendants 
stand  absolutely  debarred  and  foreclosed  of  and  from  all  equity 
of  redemption  of,  in  and  to  so  much  of  the  said  mortgaged 
premises  as  shall  be  sold  as  aforesaid,  by  virtue  of  this  decree. 


PROCEEDINGS    RESPECTING    LUNATICS,   IDIOTS 
AND   HABITUAL   DRUNKARDS.(a) 

Petition  for  commission  of  lunacy. 

In  Chancery  of  New  Jersey. 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

The  petition  of  ,  of  the  township  of  ,  in  the 

county  of  ,  and  State  of  New  Jersey,  respectfully  shows, 

that  ,  of  the  township  of  ,  in  the  county  of  , 

(a)  An  idiot  is  a  person  who  has  land,  it  was  held  that  the  court  had 
been  without  understanding  from  his  jurisdiction  in  cases  where  the  mind 
nativity,  and  whom  the  law,  there-  had  become  unsound  from  old  age, 
fore,  presumes  never  likely  to  attain  infirmity  or  any  other  cause  of  a  per- 
to  any.  A  lunatic  is  one  who  has  manent  nature.  To  constitute  a  case 
had  understanding,  which  he  has  lost  of  unsoundness  of  mind  which  will 
by  disease,  grief  or  other  accident.  justify  the  court  in  taking  the  person 
He  is  properly  one  who  has  had  lucid  and  property  of  a  man  into  its  posses- 
intervals,  sometimes  enjoying  his  sion,  and  committing  them  to  the 
senses  and  sometimes  not.  Shelf,  on  custody  of  another,  his  mind  must 
Lun.  2,  4.  It  was  formerly  doubted  be  unsound,  so  that  he  is  mentally 
whether  the  court  could  proceed  upon  incapable  of  governing  himself  or 
a  commission  which  did  not  find  the  managing  his  affairs.  In  re  Morgan, 
party  either  a  lunatic  or  an  idiot.  7  Paige  236 ;  see  Matter  of  Baker,  2 
But  at  a  more  recent  period,  in  Eng-  Johns.  Ch.  232 ;  Matter  of  Sarah  Col- 


PROCEEDINGS   RESPECTING   LUNATICS,  ETC. 


639 


and  state  aforesaid,  who  is  the  father  {or  as  the  case  may  be,)  of 
your  petitioner,  is  now,  and  for  the  space  of  years  last 

past  and  upwards,  has  been,  so  far  deprived  of  his  reason  and 
understanding  that  he  is  rendered  altogether  unfit  and  unable 
to  govern  himself  or  to  manage  his  affairs,  as  by  the  affidavits 
hereto  annexed  appears,  (a)   Your  petitioner  therefore  prays,  that 


lins,  3  C.  E.  Gr.  253 ;  Lindsley's  Case, 
17  Stew.  Eq.  564.  A  mere  failure  of 
memory  and  decay  and  feebleness  of 
the  intellectual  faculties  are  not  evi- 
dences of  that  unsoundness  of  mind 
which  will  justify  a  jury  in  finding  a 
man  a  lunatic.  In  re  Vanauken,  2 
Stock.  187. 

By  a  recent  statute,  whenever  any 
person  has  been  adjudged  insane  by  a 
judge  of  the  Court  of  Common  Pleas  as 
provided  by  law,  and  has  been  duly 
committed  to  a  lunatic  asylum  of  this 
state  at  the  expense  of  any  county 
therein,  and  it  shall  appear  that  such 
person  is  entitled  to  any  estate  not 
exceeding  one  thousand  dollars,  it 
shall  be  lawful  for  the  Orphans'  Court 
of  the  county  at  whose  expense  the 
lunatic  is  maintained  to  appoint  a 
guardian  for  him  without  an  inquest. 
Pamph.  L.,  1890,  p.  182. 

(a)  The  first  step  to  be  taken  to- 
wards the  appointment  of  a  guardian 
of  a  lunatic,  idiot  or  habitual  drunk- 
ard, is  to  apply  for  a  commission  in 
the  nature  of  a  writ  de  lunatico  in- 
quirendo.  This  application  should 
be  made  by  petition,  signed  by  the 
party  preferring  it,  and  attested  by 
his  solicitor,  and  stating  the  residence 
and  degree  of  relationship  or  other 
connection  whicli  the  petitioner  bears 
towards  the  sulyect  of  the  commis- 
sion, that  he  is  now  of  unsound  mind, 
and  the  period  for  which  he  has  been 
so,  and  praying  that  a  commission  of 
lunacy  may  issue.  Shelf,  on  Lun. 
■*624.  The  petition  is  usually  pre- 
sented by  a  near  relative  of  the  sup- 


posed lunatic.  It  may  be  presented 
by  a  husband  for  a  commission  against 
his  wife,  and  vice  versa  ;  or  by  a  father 
or  motlier  against  a  child,  and  vice, 
versa;  by  brothers,  sisters,  uncles, 
aunts,  nephews,  nieces  and  cousins 
against  each  other.  An  executor 
under  a  will  may  prefer  a  petition 
for  a  commission  against  a  legatee 
under  the  same  will.  A  trustee  under 
a  deed  may  prefer  a  petition  against 
his  cestui  que  trust.  Creditors  may 
prefer  a  petition  for  a  commission 
against  their  debtor.  A  commission 
has  also  been  issued  on  the  petition 
of  the  tenant  of  the  party,  and  by 
strangers,  when  the  lunacy  seemed 
indisputable.  Shelf,  on  Lun.  93.  As 
to  strangers,  it  was  held  in  New  Jer- 
sey that  they  have  no  right  to  inter- 
fere in  a  proceeding  of  this  nature. 
Covenhoven's  Case,  Sax.  19.  This  rule 
has  been  found  inconvenient  in  some 
cases,  and  now  it  is  held  not  to  be 
of  universal  application.  Applica- 
tions in  matters  of  this  nature  by 
strangers  are  not  encouraged,  yet  they 
will  be  listened  to  and  granted  when 
the  necessity  arises,  and  actual  and 
borm  fide  interests  or  rights  are  en- 
dangered. See  3  3IouUo7i's  Ch.  Pr. 
496. 

A  commission  of  lunacy  may  issue 
where  the  alleged  lunatic  is  an  infant. 
In  re  Chattin,  1   ('.  E.  Gr.  496. 

There  is  a  limitation  by  statute  in 
the  case  of  habitual  drunkenness, 
which  provides  that  no  petition  for 
an  inquisition  in  such  case  by  a  wife 
against     her    husband,    or    a    child 


640  FORMS  OF   PLEADINGS. 

a  commissioD,  in  the  nature  of  a  writ  de  lunatico  inquirendo, 
may  issue  out  of  this  honorable  court,  to  inquire  of  the  lunacy 
of  the  said  ,  directed  to  such  persons  as  your  Honor  shall 

think  fit. 

And  your  petitioner  will  ever  pray,  &c. 

{Signature  of  petitioner  and  of  solicitor  and  counsel.) 

Verification  of  petition. 

8tate  of  New  Jersey,    \ 
County  of  ,    J 

,  being  duly  sworn,  says — that  he  is  the  petitioner 
named  in  the  foregoing  petition  ;  and  that  the  matters  and  things 
therein  set  forth  are  true  ;  and  further,  that,  &c.,  {stating  some  of 
the  evidences  of  unsoundness,  &c.,  if  the  petitioner  has  knowledge 

thereof.)     ■ 

{Affidavits  annexed.) 

Form  of  affidavits  to  be  annexed  to  petition  of 
lunacy. (a)     New  Jersey,  ss. —  and  ,  of  the  town- 

ship of  ,  in  the  county  of  ,  and  State  of  New 

against   his  or   her   parent,  shall  be  wick's  Case,  2  Ves.,  Sr.,  401.     In  that 

received  or  acted  on.     Bev.,  "Drunk-  case  it  was  held  that  a  commission 

ards,"  I  5.     It  was  held  in  New  York  might  issue  to  inquire  of  the  lunacy 

that  where  a  petition  is  presented  by  of  a  subject  of  Great  Britain  though 

the   wife   of  the   alleged   lunatic,  it  domiciled  abroad,  and  it  was  directed 

must  be  in   the   name  of  her  next  that  the  commission  be  executed  in 

friend,  who   will   be   answerable  for  the  place  where  the  lunatic's  mansion- 

the  costs  of  the  application  in   case  house  Avas.     See  Rev.,  "Lunatics,"  l  1. 

the  court  should  think  proper  to  im-  The  statute  provides  for  the  case  of 

pose  them   upon    the   petitioner.     2  a    non-resident    lunatic.      Id.,    I    2; 

Barb.  Ch  Pr.  229.  Pamph.  L.,  1893,  p.  507.     And  there- 

A  commission  may  issue  where  the  fore  it  seems  unnecessary  that  the  jur- 

alleged   lunatic  is  a  non-resident   or  isdiction  of  chancery  should   be   in- 

temporarily   absent    from   the   state.  voked      And  the  requirement  of  the 

In  re  Child,  1  C.  E.  Gr.  498.      The  statute  that  the  copy  of  the  proceedings 

syllabus    of   this    case    is    not    sup-  shall  be  transmitted  to  the  Orphans' 

ported  by  the  opinion.     The  question  Court  of  the  county  where  the  lunatic 

there  seems  to  have  been  whether  a  resides  would  seem  to  be  conclusive, 

commission  could  be  directed  into  a  (a)  The  petition  must  be  supported 

county  where  the  alleged  lunatic  did  by  the  affidavits  of  at  least  two  persons 

not   reside.     The   case   cited   in   the  showing  the  insanity  or  unsound  state 

opinion  to  sustain  the  text  is  South-  of  the  mind  of  the  party  against  whom 


PROCEEDINGS   RESPECTING   LUNATICS,  ETC.  641 

Jersey,  both  being  of  full  age,  and  being  duly  sworn  according 
to  law,  on  their  oaths  say — that  for  the  space  of  years 

and  upwards  they  have  known  and  been  well  acquainted,  and 
frequently  discoursed  with  ,  of  said  township  of  ; 

and  these  deponents  further  severally  say,  that  within  the  space 
of  years  last  past  they  have,  by  frequently  observing  the 

behavior,  words  and  actions  of  the  said  ,  looked  upon  him 

to  be  a  person  deprived  of  his  reason  and  understanding  in  a 
very  great  degree. 

And  this  deponent,  ,  for  himself,  saith,  (here  state  fads 

showing  insanity.) 

And  these  deponents  further  severally  say,  that  they  believe 
that  the  said  is  no  way  capable  of  governing  himself  or 

his  estate. 

{Jurat.)  (Signatures.) 

Petition  for  a  commission  of  idiocy. (a) 

(Address.) 

The  petition  of  ,  of,  &c.,  respectfully  shows,  that  , 

of,  &c.,  who  is  a  brother  of  your  petitioner,  has  been  from  the 
time  of  his  birth,  and  still  is,  wholly  deficient  in  reason  and 
understanding,  and  is  an  idiot,  as  by  the  affidavits  annexed 
appears. 

Your  petitioner  therefore  prays,  that  a  commission  in  the 
nature  of  a  writ  de  idiota  inquirendo  may  issue  out  of  this  hon- 
orable court,  to  inquire  of  the  idiocy  of  the  said  ,  directed 
to  such  persons  as  your  Honor  shall  think  fit. 

And  your  petitioner  will  ever  pray,  &c. 

(Signature  of  petitioner  and  of  solicitor  and  counsel.) 

(Annex  verification  by  petitioner.) 

the  commission  is  desired  to  be  ob-  ble  physician  who  is  accjuaintcd  with 

tained,  by  setting  forth  such  instances  the  hmatic  and    knows  the    state  of 

of  irrational  conduct  as  afford  strong  liis  mind.     For  forms  of  affidavits  in 

proof  that  ho  is  insane,  and  incapable  support  of  commissions  in  lunacy,  see 

of  managing  his  own  concerns.    Shelf.  Shelf,  on  Liin.  *ti40. 

on  Lun.  624 ;  Ride  172 ;  Cuvenhoven's  (a)  The  observations  in  the  notes 

Case,  Sax.  19.     It  is  the  practice  to  on  the  preceding  pages  apply  as  well 

annex  the  affidavit  of  some  respecta-  to  a  case  of  idiocy  as  to  that  of  lunacy. 

2q 


642  FORMS   OF   PLEADINGS. 

Petition  for  a  commission  against  an  habitual 
drunkard.(a) 

[Address.) 

The  petition  of  ,  of  the  township  of  ,  in  the 

county  of  ,  and  State  of  New  Jersey,  respectfully  shows 

unto  your  Honor,  that  ,  the  brother  of  your  petitioner, 

(or  as  the  case  may  be,)  of  the  township  of  ,  in  the  said 

county  of  ,  is  now,  and  for  the  space  of  years  last 

past  has  been,  an  habitual  drunkard,  by  reason  of  which  said 
habitual  drunkenness  he  has  become  incapable  of  managing  his 
estate,  and  is  wasting  the  same ;  and  that  the  said  is 

possessed  of  considerable  real  and  personal  estate  in  this  state,  as 
appears  by  the  affidavits  hereto  annexed. 

Your  petitioner  therefore  prays,  that  your  Honor  will  be 
pleased  to  order  that  a  commission  in  the  nature  of  a  writ  de 
lunatico  inquirendo  may  issue  out  of  this  honorable  court,  to 
inquire  into  the  habitual  drunkenness  of  the  said  ,  directed 

to  such  persons  as  your  Honor  shall  think  fit. 

And  your  petitioner  will  ever  pray,  &c. 

[Signatures  of  petitioner  and  counsel) 

Order  for  commission  of  lunacy,  idiocy  or  habit- 
ual drunkenness.  (6) 
In    the  matter  of  ,  of,  &c., 

alleged  to  be  a  lunatic,  [or  "  idiot," 

or  "habitual  drunkard.") 

Upon  opening  the  matter  this  day  to  the  Chancellor  by  , 

solicitor  and  of  counsel  with  the  petitioner,  and  upon  reading 

(a)  No  petition  for  an  inquisition  makes  it  lawful  for  the  Chancellor  to 

under   the    act    relative   to   habitual  issue   a   commission,  &c.,  to   inquire 

drunkards  by  a  wife  against  her  hus-  into  the  habitual  drunkenness  of  an}' 

band,  or  by  a  child  against  his  or  her  person  in  this  state  having   real   or 

parent  shall  be  received  or  acted  on.  personal    estate    therein ;     it    would 

Eev.,  "Drunkards"  |  5.     The  statute  seem,   therefore,   to   be   necessary   to 

indicates,  and  the  reason  of  the  thing  allege  in  the  petition  not  only  that 

requires,  that  the  practice  in  cases  of  he  is  incapable  of  managing  his  estate, 

habitual  drunkenness  should  be  sub-  or  is  wasting  the  same,  but  also  the 

slantially   the    same   as   in    cases   of  fact  that  he  is  possessed  of  such  real 

lunacy,     flatter  of  Wets,  1  C.  E.  Or.  or  personal  estate.     See  Bev ,  '^Drunk- 

318 ;  Bev.,  ''firunkards,"  §§1,8;  Bev.  ards,"  I  1. 
Sup.,  "Drunkards,"  §  1.    The  statute  (6)  The  petition  is  ex  parte.     If  it 


PROCEEDINGS   RESPECTING   LUNATICS,  ETC. 


643 


the  petition  of  ,  and  the  affidavits  of  and 

thereto  annexed  :  It  is,  on  this,  &c.,  ordered,  that  upon  filing 
the  said  petition  and  affidavits,  a  commission  in  the  nature  of 
a  writ  de  lunatico  {or  "  idiota  ")  inquirendo  do  issue  out  of,  and 
under  the  seal  of  this  court,  agreeably  to  the  prayer  of  the  said 
petition,  to  inquire  of  the  lunacy,  {or  "  idiocy,"  or  "  habitual 
drunkenness,")  of  the  said  ,  to  be  directed  to  {a  master  in 

chancery,)  and  and  ,  of  the  county  of  ,  who, 

or  any  two  of  them,  of  whom  {the  master)  shall  be  one, 

are  hereby  appointed  commissioners  for  the  purpose  aforesaid. 


Commission    to    inquire    of    lunacy    or    idiocy. (a) 

New  Jersey,  ss. — The  State  of  New  Jersey  to  , 


presents  a  prima  facie  case  of  lunacy, 
idiocy  or  habitual  drunkenness,  the 
court  will,  in  general,  grant  the  order, 
though  it  is  not  bound  to  do  so.  Ex 
parte  Tornlimon,  1  T'^  ct  B.  58.  The 
issuing  of  a  commission  rests  in  dis- 
cretion. In  re  Chatfin,  1  0.  E.  Gr. 
496.  It  is  the  duty  of  the  solicitor  for 
the  petitioner  to  suggest  the  names  of 
commissioners  who  will  be  competent 
to  execute  the  commission,  and  to 
give  the  proper  instructions  to  the 
jury  without  the  aid  of  counsel  to  per- 
form that  duty  for  them,  flatter  of 
Boot,  8  Paige  627.  By  the  practice  in 
New  Jersey,  at  least  one  of  the  com- 
missioners named  must  be  a  master 
in  chancery  who  is  a  solicitor  of  the 
court,  and  he  is  to  act  in  executing 
the  commission,  and  it  is  the  practice 
also  to  appoint  as  a  commissioner  a 
physician. 

(a)  When  the  Chancellor  has  made 
an  order  for  the  issuing  of  the  com- 
mission, tlie  petition  and  order  are 
filed  with  the  clerk,  who  will  seal  the 
commis«ion  and  deliver  it  to  the 
solicitor  of  the  petitioner.  In  all 
cases  where  a  commission  of  idiocy, 
lunacy  or  habitual  drunkenness  shall 
issue,  it  shall  be  executed,  and  the 


inquisition  returned  to  the  Chan- 
cellor, in  two  months  after  making 
the  order  for  issuing  of  the  commis- 
sion, or  the  commission  shall  be  con- 
sidered as  superseded,  and  no  pro- 
ceedings shall  take  place  thereon 
without  the  further  order  of  the 
court ;  and  no  decree  shall  be  entered 
upon  any  inquisition  and  signed  until 
the  expiration  of  ten  days  after  the 
inquisition  shall  be  returned  into  the 
office.  Bale  174.  Where  the  alleged 
lunatic  is  in  an  asylum,  the  commis- 
sion should  be  executed  in  the  county 
where  his  mansion  and  estate  are,  or 
where  he  last  resided  before  being 
sent  to  the  asylum.  In  re  Child,  1  C 
E.  Or.  498.  But  it  seems,  from  one 
or  two  modern  cases,  that  where  the 
estate  of  the  lunatic  is  small,  the 
court  will,  in  order  to  avoid  the  in- 
convenience and  expense,  order  the 
commission  to  issue  to  a  difTerent 
county  from  that  in  which  the  lunatic 
resides.  Ibid.  In  case  of  the  death 
or  incapacity  of  the  commissioners 
before  whom  the  commission  has  been 
executed,  it  will  be  suspended  and  a 
new  one  directed  to  issue.  Shelf,  on 
Lun.  83. 


644  FOEMS   OF   PLEADINGS. 

and  ,  of  the  county  of  ,  and  State  of  New  Jersey — 

Greeting  : 

Know  ye,  that  we  have  assigned  you,  and  any  two  of  you,  of 

whom  you,  the  said  (master),  shall  be  one,  and  you  are 
[l.  s.]     hereby  assigned  to  inquire,  by  the  oaths  or  affirmations 

of  good  and  lawful  men  of  the  said  county  of.  , 

by  whom  the  truth  of  the  matter  may  be  the  better  known, 
whether  ,  of  the  township  of  ,  in  the  county  of 

,  and  state  aforesaid,  is  *  a  lunatic  or  of  unsound  mind, 
(or,  "  is  an  idiot,")  so  that  he  is  not  fit  for  the  government  of 
himself,  his  lands  and  tenements,  goods  and  chattels,  or,  in  the 
case  of  an  habitual  drunkard,  after  *,  an  habitual  drunkard,  by 
reason  whereof  he  has  become  incapable  of  controlling  or  man- 
aging himself  or  his  estate,  (or,  "  is  wasting  his  estate,")  and  if 
so,  from  what  time,  after  what  manner,  and  how ;  and  if  the 
said  ,  being  in  that  condition,  has  alienated  any  lands  and 

tenements  or  not,  and  if  so,  *  what  lands  and  what  tenements,  to 
what  person  or  persons,  where,  when  and  after  what  manner,  and 
how;  and  what  lands  and  tenements,  goods  and  chattels,  yet 
remain  to  him,  and  of  what  value  the  lands  and  tenements  by 
him  alienated,  as  well  as  those  by  him  retained,  are ;  and  of  what 
person  or  persons,  as  well  the  lands  and  tenements  so  alienated 
as  the  lands  and  tenements  by  him  retained,  are  held,  and  after 
what  manner,  and  how  much  the  issues  and  profits  thereof  are 
worth  by  the  year  ;  and  what  is  the  value  of  his  goods  and  chat- 
tels and  personal  estate ;  and  who  are  his  nearer  heirs,  and  of 
what  age.  And  therefore  we  command  you,  or  any  two  of  you 
as  aforesaid,  that  at  certain  days  and  places,  which  you,  or  any 
two  of  you  as  aforesaid,  shall  for  that  purpose  appoint,  you 
diligently  make  inquisition  in  the  premises ;  and  that  you  cause 
ten  days'  notice  of  the  time  and  place  by  you  appointed  for  that 
purpose  to  be  given  to  the  said  ;  and  that  you  send  the 

inquisition  which  you  shall  thereupon  make,  under  your  seals, 
or  the  seals  of  any  two  of  you  as  aforesaid,  and  the  seals  of 
those  persons  by  whom  it  shall  be  made,  distinctly  and  plainly, 
and  without  delay,  to  our  Chancellor,  in  our  Court  of  Chancery, 
together  with  this  our  writ.  And  we  command,  by  the  tenor  of 
these  presents,  the  sheriflp  of  the  county  of  aforesaid,  that 


PROCEEDINGS   RESPECTING   LUNATICS,  ETC.  645 

-at  certain  days  and  places  which  you,  or  any  two  of  you  as 
aforesaid,  shall  make  known  to  him,  he  cause  to  come  before 
you,  or  any  two  of  you,  so  many  and  such  good  and  lawful  men 
of  said  county  of  ,  each  of  whom  is  a  citizen  of  this  state 

resident  in  said  county  of  ,  above  the  age  of  twenty-one 

years  and  under  the  age  of  sixty- five  years,  as  you  shall  direct, 
by  whom  the  truth  of  the  matters  aforesaid  may  be  the  better 
known  and  inquired  into. 

Witness  ,  Chancellor,  at  Trenton,  the  day  of 

,  eighteen  hundred  and 

Solicitor.  Clerk. 

Return  to  commission.  The  execution  of  this  commis- 
.sion  appears  by  the  return  hereto  annexed. 

{Signatures  of  commissioners.) 

Precept  to  the  sheriff  to  summon  a  jury. (a) 

By  virtue  of  a  commission  in  the  nature  of  a  writ  de  lunatico 
inquirendo,  under  the  seal  of  the  Court  of  Chancery  of  the  State 
of  New  Jersey,  bearing  date  at  Trenton,  the  day  of  , 

(a)  Upon  receiving  the  commission,  If  twelve  concur  in  the  verdict  it  will 
.the  commissioners,  or  the  one  first  be  suflBcient,  although  others  refuse 
named,  or  the  solicitor  of  the  peti-  to  join.  Shelf,  on  Lun.  95 ;  Ex  parte 
tioner  for  them,  will  prepare  a  pre-  Wragg,  5  Ves.  450.  By  statute,  now 
cept  to  the  sheriff  of  the  county  in  the  sheriff  may  in  all  cases  summon 
which  the  commission  is  to  be  exe-  twelve  jurors  instead  of  twenty -four, 
.cuted,  which  the  commissioners,  or  and  their  verdict  (which  must  be 
the  major  part  of  them,  will  issue  unanimous)  will  be  as  legal  and  bind- 
under  their  hands  and  seals,  directing  ing  as  if  found  by  twenty-four  jurors, 
•said  sheriff  to  cause  a  jury  of  twenty-  When  a  jury  of  twelve  is  summoned, 
four  good  and  lawful  men  of  his  they  are  entitled  to  two  dollars  each 
county  lo  come  before  them  at  a  cer-  per  diem,  and  the  commissioners  may 
tain  time  and  in  a  certain  place,  to  in-  be  allowed  such  compensation  as  is 
quire,  upon  their  oaths,  of  the  matters  rea'onable  and  proper,  to  be  paid  out 
and  things  which  shall  be  given  them  of  the  estate  of  the  subject  of  the  in- 
in  charge  by  virtue  of  the  commission.  quisition.  Pamph.  L.,  1887,  p.  48. 
Shelf,  on  Lun.  95.  By  virtue  of  this  See  In  re  Farrell,  Oct.  T.,  1893.  The 
•precept,  the  sheriff  summons  the  commissioners  are  authorized  to  de- 
jururs,  whose  names  are  written  in  a  cide  upon  the  validity  of  challenges 
panel  annexed  to  the  precept,  to  to  jurors.  But  tliey  have  no  right  to 
which  panel  he  refers  in  making  his  dictate  to  the  sheriff  what  persons 
Tetuin.  No  inquest  can  betaken  ui)oii  should  be  summoned  as  jurors.  Mal- 
.the  oaths  of  less  than  twelve  jurors.  ler  of  Wager,  6  I'aige  11. 


6i^6  FORMS   OF   PLEADINGS. 

eighteen  hundred  and  ,  to  us  whose  names  are  hereunder 

written  directed,  to  inquire  whether  ,  of  the  township  of 

,  in  the  county  of  ,  and  state  aforesaid,  be  a  lunatic 

(or  "an  idiot")  or  not;  these  are  therefore  to  will  and  require 
you  to  cause  to  come  and  appear  before  us,  twenty-four  {or 
"  twelve,"  as  the  case  may  be,)  good  and  lawful  men  of  the  said 
county  of  ,  above  the  age  of  twenty-one  years  and  under 

the  age  of  sixty-five  years,  on  ,  the  day  of  > 

instant,  at  o'clock  in  the  noon  of  the  same  day,  at 

,  then  and  there,  upon  their  oaths  and  affirmations,  to 
inquire  of  the  lunacy  {or  "idiocy")  of  the  said  ,  and  of 

all  such  other  matters  and  things  as  shall  be  given  them  in  charge 
by  virtue  of  the  said  commission  ;  and  thereof  fail  not,  at  your 
peril.     Given  under  our  hands  and  seals  the  day  of  , 

eighteen  hundred  and 

{Signatures  and  seals  of  commissioners.) 

To  the  sheriflp  of  the  county  of 

Return  of  sheriff  annexed  to  precept.  The  execution 
of  the  within  precept  appears  by  the  panel  annexed. 

{Signature  of  sheriff.) 

{County),  ss. — Names  of  the  jurors  to  inquire  according  to 
the  tenor  of  the  precept  annexed :  {here  follow  the  names  of  the 
jurors.) 

Commission  to  inquire   of  habitual  drunkenness. 

New  Jersey,  ss. — The  State  of  New  Jersey  to  ,  of  the 

county  of  ,  and  State  of  New  Jersey — Greeting : 

Know  ye,  that  we  have  assigned  you,  and  any  two  of  you,  of 
whom  shall  be  one,  and  you  are  hereby  assigned  to  inquire, 

by  the  oaths  and  affirmations  of  good  and  lawful  men  of  the 
county  of  ,  by  whom  the  matter  may  be  the  better  known, 

whether  ,  of  ,  in  the  county  of  ,  is  incapable 

of  managing  his  estate  {or,  "is  wasting  his  estate,")  in  conse- 
quence of  habitual  drunkenness,  and  if  so,  from  what  time  he 
has  been  *  so  incapable,  {or  after  *,  "wasting  his  estate,")  in 
consequence  of  such  habitual  drunkenness.  And  if  the  said 
,  being  so  incapable,  has  alienated  any  lands  or  tenements^, 
and  if  so,  &c.,  {continue  as  in  preceding  form  from  *.) 


PROCEEDINGS   EESPECTING   LUNATICS,  ETC.  647 

Notice  to  lunatic  or  idiot,  &c.,  of  executing  com- 
mission.(a) 

{Title  of  matter.) 

Take  notice,  that  a  commission  to  inquire  as  to  your  alleged 
lunacy,  (or  "idiocy,"  or  "habitual  drunkenness,")  issued  out  of, 
and  under  the  seal  of  the  Court  of  Chancery  of  the  State  of 
New  Jersey,  and  to  us  directed  as  commissioners,  will  be  exe- 
cuted at  {designate  particularly  the  place  of  holding  the  inquisition^ 
on  the  day  of  next,  {or  "  instant,")  at  o'clock 

in  the  noon. 

Dated,  &c.  {Signatures  of  commissioners.) 

To 

Warrant  to  produce  alleged  lunatic.(6) 
By  virtue  of  a  commission  in  the  nature  of  a  writ  de  lunatico 
inquirendo,  under  the  seal  of  this  court,  bearing  date,  &c.,  {date 
of  commission,)  to  us  whose  names  are  hereunder  written  directed, 
to  inquire  whether  ,  of  {place,)  be  a  lunatic  or  not,  these 

are  to  will  and  require  you  to  produce  before  us  the  said  , 

at  the  execution  of  the  said  commission,  on  the,  &c.,  at,  &c. 
Given  under  our  hands  and  seals  this,  &c. 

(a)  Ten  days'  notice  of  the  taking  2)arte  Whitenack,  2  Gr.  Ch.  252.     In 

of  the  inquisition  shall  be  given  to  cases    of   confirmed    and    dangerous 

the  person  who  is  the  subject  thereof ;  madness,    notice    may   be    dispenied 

the    Chancellor,   however,   may,   for  with,  but  then  only  by  the  express 

good  reasons,  allow  shorter  notice,  or  order  of  the  court.     In  re  Vanauhn, 

dispense  with  notice  altogether.  Proof  2  Slock.  186.     Before  entering  upon 

of  the  giving  of  the  notice  shall  be  the   examination,  the  commissioners 

filed  with  the  inquisition,  and  in  case  should  require  due  proof  of  the  ser- 

less  than  ten  days'  notice  has  been  vice  of  notice  on  the  lunatic, 
given,  or  no  notice  at  all,  the  reasons  (6)  At  a  personal  examination  of 

therefor  shall  appear  by  affidavit,  to  an   alleged   lunatic   by   the  commis- 

be  filed  with   the  inquisition.     Rule  sioners  and  jurors,  all  other  persons, 

173.     The  want  or  defect  of  notice  is  including  counsel,  may  be  excluded, 

not  aided  by  the  alleged  lunatic  a])-  so  that  the  commissioners  and  jurors 

pearing  before  the  jury  and  attempt-  may  be   at  liberty  to   exercise  their 

ing  a  defence.     An  inquisition  taken  own  observations.     Lindsley's  Case,  1 

Avilhout  due  notice  will  be  set  aside  Dick.  Ch.  licp.  358. 
and  a  new  commission  awarded.     J'Jx 


648  FORMS  OF  PLEADINGS. 

Oath  to  juror  on  execution  of  commission.(a)    You 

shall  well  and  truly  try  and  inquire  touching  the  lunacy,  (or 
"  idiocy,"  or  "  habitual  drunkenness,")  of  ,  and  of  all  such 

matters  and  things  as  shall  be  given  you  in  charge  by  virtue  of 
a  commission  issued  out  of,  and  under  the  seal  of  the  Court  of 
Chancery,  to  inquire  into  his  said  lunacy,  {or  "  idiocy,"  &c.,) 
and  now  here  to  be  executed,  and  a  true  inquisition  make  accord- 
ing to  the  evidence.     So  help  you  God.     Shelf,  on  Lun.  625. 

Oath  to  witnesses  on  an  inquisition. (6)  The  evidence 
you  shall  give  touching  the  lunacy  {or  "  idiocy,"  or  "  habitual 
drunkenness,")  of  ,  and  all  such  matters  and  things  as 

shall  be  required  of  you,  by  virtue  of  a  commission  issued  out 
of,  and  under  the  seal  of  the  Court  of  Chancery  of  New  Jersey, 
now  here  to  be  executed,  shall  be  the  truth,  the  whole  truth  and 
nothing  but  the  truth.     So  help  you  God. 

Subpoena  for  witnesses  on  execution  of  commis- 
sion.(c)  By  virtue  of  a  commission  in  the  nature  of  a  writ  de 
lunatico  {or  "  idiota  ")  inquirendo,  issuing  out  of,  and  under  the 
seal  of  the  Court  of  Chancery  of  the  State  of  New  Jersey, 
bearing  date  the  day  of  ,  eighteen  hundred  and 

,  to  us  whose  names  are  hereunder  written  directed,  to 
inquire  whether  ,  of  ,  be  a  lunatic  {or  "  an  idiot," 

or  "an  habitual  drunkard,")  or  not,  this  is  to  require  that 
you,  "  and  each  of  you,"  personally  be  and  appear  before  us  at 
the  execution  of  the  said  commission,  at  ,  in  ,  on 

the  day  of  ,  instant,  at  o'clock  in  the 

(a)  The  commissioner  named  in  the  missions   of  lunacy,   have   power   to 

commission  who  is  a  master  in  chan-  summon  witnesses,  and  issue  subpa?nas, 

eery  usually  administers  the  oath  to  as  incident  to  their  office.     Shelf,  on 

the  jurors.     There   is   no  statute  or  Lun.   103.     If  the   witnesses   fail   to 

rule  of  court  requiring  the  commis-  attend  in  obedience  to  this  summons, 

sioners  to  be  sworn.  it  will  be  necessary  to  get  an  order  of 

(6)  The  chief  commissioner  (being  the  court  to  compel  their  attendance, 

a  master  in  chancery)  must  swear  the  It  is  the  usual  practice,  therefore,  in 

witnesses  previous  to  their  being  ex-  New   Jersey,  to   issue  a  subpoena  ad 

amined.  "  testificandum,  under  the  seal   of  the 

(c)  The  commissioners,  under  com-  court,  in  the  first  instance. 


PROCEEDINGS   RESPECTING   LUNATICS,  ETC. 


649 


noon,  upon  your  several  and  respective  oaths  to  testify  the  truth, 
according  to  your  knowledge,  touching  the  lunacy  {or  "  idiocy," 
or  "  habitual  drunkenness,")  of  the  said  ,  and  of  all  such 

matters  as  shall  be  demanded  of  you  by  virtue  of  the  said 
commission.  Hereof  fail  not,  at  your  peril.  Given  under  our 
hands  and  seals  this  day  of  ,  eighteen  hundred 

and 

{Signatures  and  seals  of  commissioners.) 

Inquisition  of  lunacy  or  idiocy. (a) 

{Title  of  matter.) 
New  Jersey,  county,  to  wit — An  inquisition  taken  at 

,  in  the  township  of  ,  county  of  ,  and  State 

of  New  Jersey,  on  the  day  of  ,  eighteen  hundred 


(a)  The  commissioners  and  jury 
having  assembled  to  execute  the  com- 
mission, and  the  jury  having  been 
duly  sworn,  and  due  proof  of  service 
of  notice  upon  the  lunatic  produced, 
the  commission  will  be  read  to  the 
jury,  and  the  chief  commissioner  in 
attendance  will  explain  to  them  the 
nature  of  the  inquiry  they  are  to 
make  and  their  duties.  The  counsel 
for  the  petitioner  states  the  case  to  the 
jury,  with  such  observations  as  may 
be  necessary  to  explain  it.  The  wit- 
nesses are  then  examined,  both  as  to 
the  fact  of  the  lunacy  and  as  to  who 
are  his  nearer  heirs,  and  the  nature 
and  extent  of  his  real  and  personal 
estate,  as  directed  in  the  commission. 
The  (ibject  of  the  inquiry  as  to  the 
value  of  the  estate  is  for  the  purpose 
of  fixing  the  amount  of  the  bond  of 
the  guardian  when  appointed.  If 
•the  lunatic  be  represented  by  counsel, 
he  may  cross-examine  tlie  witnesses 
as  in  other  cases  in  the  court.  If  the 
lunatic  be  present,  lie  ought  also  to 
be  examined  by  the  commissioners  or 
jury,  all  other  parties  being  absent ; 
he  has  a!so  a  right  to  insist  on  such 


examination,  and  to  be  present  at  the 
execution  of  the  commission.  Shelf, 
on  Lun.  625 ;  see  also  In  re  Vanauken, 
2  Stock.  186.  The  commissioners  and 
jury  have  a  right  to  examine  the  sub- 
ject of  the  inquisition  in  person  before 
them  without  a  special  order  for  that 
purpose.  Rule  172.  It  is  not  neces- 
sary that  the  evidence  taken  before 
the  jury  should  be  reduced  to  writing 
and  returned  with  the  inquisition. 
Covenhoven's  Case,  Sax.  19.  After  the 
testimony  is  closed  the  commissioners 
should  submit  the  question  to  the 
jury  in  the  form  of  a  charge,  stating 
the  law  applicable  to  the  case,  and 
recapitulating  the  facts  if  necessary, 
and  after  argument  of  counsel,  if  de- 
sired. Rev.  Sup.,  "Lunatics,"  'i  1. 
And  the  jury  are  to  be  instructed,  if 
twelve  or  more  of  them  find  that  the 
party  is  not  incompetent,  they  are  to 
deliver  their  verdict  accordingly ;  or 
if  the  same  number  decide  against 
his  competency,  that  tliey  then  find 
and  determine  the  other  facts  directed 
to  be  inquired  of;  and  tliat  if  twelve 
of  them  cannot  agree  either  way,  they 
report  the  fact  to  the  commissioners^ 


650 


FORMS   OF   PLEADINGS. 


and  ,  before  ,  and  ,  commissioners,  by 

virtue  of  a  commission  in  the  nature  of  a  writ  de  lunatieo,  {or 
"idiota")  inquirendo,  issuing  out  of,  and  under  the  seal  of  the 
Court  of  Chancery  of  the  State  of  New  Jersey,  bearing  date  at 
Trenton,  the  day  of  ,  eighteen  hundred  and         .    , 

to  inquire  of  the  lunacy  (or  "  idiocy")  of  ,  of  the  township 

of  ,  in  the  county  of  aforesaid,  in  the  said  commis- 

sion named,  upon  the  oaths  and  solemn  affirmations  of  good  and 
lawful  men  of  the  said  county,  that  is  to  say,  upon  the  oaths 
of  ,  (set  forth  the  names  of  the  jurors ;  if  any  of  the  jurors, 

affirm,  say,)  [and  upon  the  solemn  affirmation  of  ,  they 

having  severally  alleged  themselves  conscientiously  scrupulous 
of  taking  an  oath,  and  being  solemnly  affirmed,]  who,  being 
duly  summoned  and  charged,  upon  their  respective  oaths  [and 


that  their  return  may  be  made  accord- 
ingly. In  case  there  be  twelve  jurors 
the  instructions  will  be  accordingly. 
In  relation  to  every  legal  question 
arising  in  the  execution  of  the  com- 
mission, a  majority  of  the  commis- 
sioners must  decide.  Matter  of  Arn- 
hout,  1  Paige  498.  It  is  improper  for 
the  sherifl'  who  summoned  the  jury 
to  be  in  tlie  room  or  to  converse  on 
the  subject  with  the  jury  wliile  they 
are  deliberating  on  their  verdict. 
The  extent  of  his  duty  is,  if  directed 
to  do  so  by  the  commissioners,  to  guard 
the  passage  to  the  room  occupied  by 
the  jury  and  prevent  them  from  being 
intruded  on  by  others.  Ibid.  The 
solicitor  of  the  petitioner  should  have 
an  inquit-ilion  ready  prepared  in 
blank.  The  jury  having  deliberated 
on  the  matter  of  inquiry,  and  agreed 
upon  a  verdict,  are  to  return  the  same 
to  the  commissioners.  The  blanks  in 
the  inquisition  are  then  filled  up,  and 
the  inquisition  is  then  signed  and 
sealed  by  the  commitsioners  and  jury, 
(the  commissioners  signing  on  the 
left-hand  side  and  the  jurors  on  the 
right-hand   side  of  the   page,)   after 


having  been  previously  read  over. 
The  inquisition  is  then  annexed  to 
the  commission,  which  is  endorsed 
by  the  commissioners,  and  delivered 
to  the  solicitor  of  the  petitioner,  to  be 
retained  in  his  possession  for  the  com- 
mission on  behalf  of  the  jury.  The 
fit  and  usual  return  is  "idiot,"  or 
"lunatic"  with  or  without  lucid  in- 
tervals, and  incapable  of  the  govern- 
ment of  himself,  his  lands,  tenements, 
goods  and  chattels,  or  '"of  unsound 
mind  and  incapable  of  the  govern- 
ment of  himself,  his  lands,  tenements, 
goods  and  chattels."  For  proper  form 
of  return  see  Lindsleijs  Cane,  17  Stew. 
Eq.  564.  If  the  inquisition  finds  the 
party  to  be  a  lunatic,  but  omits  to 
state  whether  lucid  intervals  exist  or 
not,  it  is  not,  therefore,  bad.  Stock's 
Law  of  Non  Comp.  104.  In  the  case' 
of  an  idiot  the  inquisition  is  sufficient 
if  it  finds  the  party  to  be  so,  without 
the  addition  of  any  other  words.  The 
jury  should  find  whether  the  party  is 
of  unsound  mind  or  not,  although  they 
may  not  find  that  he  is  a  lunatic  in 
the  popular  sense  of  the  word,  flat- 
ter of  Conover,  1  <S'^e«;.  Eq.  330. 


PROCEEDINGS   RESPECTING   LUNATICS,  ETC.  651 

solemn  affirmations,]  say,  that  the  said  ,  at  the  time  of 

taking  this  inquisition,  *  {if  the  party  he  found  not  a  lunatic,  insert 
here,  "  is  of  sound  mind,  memory  and  understanding,  and  is 
capable  of  the  government  of  himself,  his  lands,  tenements, 
goods  and  chattels.  In  testimony,"  &c.,  and  conclude.  If  he 
be  found  a  lunatic,  add  after  *,  "is  a  lunatic  and  of  ud sound 
mind,  and  does,"  or  "does  not,"  as  the  case  may  be,  "enjoy  lucid 
intervals,"  or,  "is  an  idiot,")  so  that  he  is  not  capable  of  the 
government  of  himself,  his  lands,  tenements,  goods  and  chattels ; 
and  that  he  has  been  in  the  same  state  of  '\{a)  lunacy  for  the 
space  of  years  last  past  and  upward,  {or  in  case  of  idiocy, 

after  f,  "idiocy  from  his  nativity.")  And  the  jurors  aforesaid, 
upon  their  respective  oaths  [and  affirmations]  aforesaid,  further 
say,  that  they  find  that  the  said  ,  at  the  time  of  taking 

this  inquisition,  is  seized  of,  and  entitled  to,  all  that  certain  tract 
of  land  and  premises,  situate,  lying  and  being  in  the  township 
of  aforesaid,  bounded,  &c.,  {describe  premises  shortly ;) 

and  that  the  issues  and  profits  of  the  said  tract  of  land  and 
premises  are  of  the  yearly  value  of  dollars ;  and  also  that 

the  said  *  has  not  alienated  any  lands  or  tenements  during 

his  lunacy  aforesaid,  to  the  knowledge  of  the  said  jurors,  {or  after 
*,  "  being  in  a  state  of  lunacy,  did,  on  or  about  the  day 

of  ,  eighteen  hundred  and  ,  by  a  deed  of  warranty, 

alien,  sell  and  convey  unto  ,  of,  &c.,  a  certain  house  and 

tract  of  land,  situate,  &c.,  {briefly  describing  premises  and  stating 
transaction  generally.)  And  the  said  jurors,  upon  their  respec- 
tive oaths  [and  affirmations]  aforesaid,  further  say,  that  the  said 
is,  at  the  time  of  taking  this  inquisition,  also  possessed  of, 
or  entitled  unto,  goods,  chattels  and  personal  estate  consisting  of, 
&c.,  of  the  value  of  dollars  or  thereabouts.     And  lastly, 

that  ,  aged  years  or  thereabouts,  {and  naming  nearer 

heirs  and  their  ages,)  are  the  only  [children]  and  nearer  heirs  of 
the  said 

(a)  It   is   usual,   when   it   appears  quisitions   having    been   quashed   on 

that   the   kinacy   has   been   of  some  the  ground  that  the  conimencenient 

duration,  to  inquire  from  what  period  of  the  lunacy  was  not  carried  back  so- 

it    commenced.      Ex  parte  Feme,   5  far  as  was  warranted  by  the  evidence, 

Ves.  450.     There  are  instances  of  in-  Shelf,  on  Lun.  97. 


652  FORMS  OF   PLEADINGS. 

In  testimony  whereof,  as  well  the  said  commissioners  as  the 
jurors  aforesaid,  have  to  this  inquisition  set  their  hands  and  seals 
the  day  and  year  first  above  written.(a) 

{Names  and  seals  of  jurors.) 

{Names  and  seals  of  commissioners.) 

Order  setting  aside  inquisition  and  for  a  new 
commission  in  lunacy. 

{Title  of  matter.) 

On  reading  the  petition  filed  in  the  above-stated  matter,  on 
the  day  of  last,  praying  that  the  inquisition  thereto- 

fore returned  in  said  matter  might  be  set  aside,  and  that  an  order 
for  a  new  commission  might  be  granted,  and  on  reading  the  affi- 
davits attached  to  said  petition,  and  the  alleged  lunatic  having 
been  personally  examined  by  the  Chancellor,  and  it  appearing  to 
the  court  that  the  prayer  of  the  said  petition  should  be  granted : 
It  is,  on  this  day  of  ,  eighteen  hundred  and  , 

on  motion  of  ,  of  counsel  with  the  petitioner,  ordered,  that 

the  inquisition  now  on  file  in  the  above-stated  matter  be  and  the 
same  is  hereby  set  aside. 

And  it  is  further  ordered,  that  a  new  commission  do  issue 
out  of,  and  under  the  seal  of  this  court,  agreeably  to  the  prayer 
of  the  original  petition  herein,  to  inquire  of  the  lunacy  of  the 
said  ,  to  be  directed  to  ,  and  ,  of  the 

city  of  ,  who,  or  any  two  of  them,  {the  master  being  one,) 

are  hereby  appointed  commissioners  for  the  purpose  aforesaid. 

Notice  of  motion  for  leave  to  traverse  inquisition 
or  that  an  issue  be  awarded.(6) 

{I^tle  of  matter.) 
As  on  page  148  to  *,  then,  for  an  order  that  have  leave 

to  traverse  the  inquisition  in  this  matter,  or  that  an  issue  may 

(a)  The  commission  must  be  exe-  and  no  i^roceeding  shall  take  place 

cuted  and  the  inquisition  returned  to  thereon  without  the  further  order  of 

the   Chancellor  within    two   months  the  court.     Rule  174. 

after  making  the  order  for  issuing  of  (6)  A  lunatic  may  appear  and  tra- 

the   commission   or   the   commission  verse  the  inquisition  by  attorney,  but 

shall    be   considered    as   superseded,  an  idiot  must  appear  before  the  cotirt 


PROCEEDINGS    RESPECTING    LUNATICS,  ETC.  653 

be  awarded  to  try  the  fact  of  the  lunacy  of  the  said  ,  and 

whether  he  is  capable  of  the  government  of  himself,  his  lands, 
tenements,  goods  and  chattels,  and  for  such  other  relief  as  the 
court  may  deem  proper,  which  motion  will  be  founded  upon  the 
inquisition  in  this  matter  and  upon  the  petition  and  affidavits, 
with  copies  of  which  you  are  herewith  served ;  and  that  said 
be  allowed  out  of  his  estate  a  reasonable  sum  to  defray 
the  costs  and  expenses  of  trying  said  issue  and  the  costs  of  this 
application. 

Form  of  a  traverse. 

And  the  said  ,  in  his  proper  person  complaining  that 

he,  under  color  of  the  premises,  is  grievously  vexed  and  dis- 
quieted, and  this  not  justly,  because  protesting  that  the  inquisi- 
tion aforesaid  and  the  matter  in  the  same  contained  are  not 
sufficient  in  law,  to  which  he  hath  no  necessity,  neither  is  he 
bound  by  the  law  of  the  land  to  answer  in  any  manner,  for  plea, 
nevertheless,  the  said  saith  that  he,  the  said  ,  at  the 

said  time  of  the  taking  of  the  inquisition  aforesaid,  and  also 
always  before  and  continually  afterwards,  hitherto,  was  and  yet 
is  of  sound  mind,  good  understanding  and  sane  memory,  and 
sufficiently  capable  of  the  government  of  himself  and  his  estate 
aforesaid  without  this ;  that  he,  the  said  ,  at  the  said  time 

of  the  taking  of  the  inquisition  aforesaid,  or  at  any  time  before 
or  afterwards,  was  or  now  is  a  lunatic,  so  that  he  is  not  capable 
of  the  government  of  himself  and  his  estate  aforesaid,  and  this 
the  said  is  ready  to  verify  as  the  court  here  shall  consider, 

wherefore  he  prays  judgment  and  that  the  inquisition  aforesaid 
may  be  quashed,  made  void  and  entirely  held  for  naught,  and 
that  he  to  all  things  which  he  hath  lost  by  occasion  or  color  of 
the  inquisition  aforesaid  may  be  restored,  and  that  he  by  occa- 
sion or  color  of  the  inquisition  aforesaid  may  not  be  any  further 
disturbed,  but  of  the  premises  by  the  court  here  may  be  entirely 
discharged. 

in  person.     Covenhoven' s  Case,  Sax.  19.  only   upon   the  exercise  of  a  soiind'^ 

A   traverse  of  an  inquisition   by  an  judicial     discretion     by     the    court, 

alleged  lunatic  cannot  be  demanded  Lindslei/s  Case,  1  Dick.  Ch.  Rep.  358. 
as  a  right  in  this  state,  but  can  be  had 


654  FORMS   OF   PLEADINGS. 

Order  directing  an  issue  in  fact. 

( Title  of  matter.) 

On  reading  and  filing  the  petition  of  the  above-named  , 

praying  {or  notice  of  motion)  for  an  order  directing  an  issue  to 
try  the  question  whether  the  said  is  a  lunatic  and  incapa- 

ble of  governing  himself,  his  lands,  <fec.,  and  on  reading  and 
filing  the  affidavits  of  in  support  of  said  {'petition  or 

motion :)  It  is,  <fcc.,  [after  hearing  in  opposition  thereto,] 

ordered,  that  an  issue  be  made  up  and  settled  to  try  the  ques- 
tion whether  the  said  be  a  lunatic  and  incapable,  &c.,  and 
that  the  said  issue  be  tried  at,  &c. 

And  it  is  further  ordered,  that  the  solicitor  of  the  said  , 

in  the  first  instance,  prepare  the  issue  and  submit  it  to  the 
solicitor  of  ,  and  that  if  they  cannot  agree  as  to  its  form, 

&c.,  application  be  made  to  this  court ;  and  that  if  the  solicitor 
for  the  said  shall  omit  to  prepare  such  issue  and  to  serve 

the  same  on  the  solicitor  for  within  days  after  ser- 

vice of  a  copy  of  this  order,  then  the  order  for  the  issue  shall  be 
deemed  discharged. 

And  it  is  further  ordered,  that  {the  guardian,  if  appointed,  or 
otherwise^  pay  to  the  solicitor  of  the  said  the  sum  of 

dollars,  to  defray  the  costs  and  expenses  of  trying  said  issue  and 
the  costs  of  this  application. 

Decree  in  case  of  lunacy.(a) 

{Title  of  matter.) 
Upon  opening  the  matter  to  the  Chancellor  this  day  by  , 

solicitor  for  and  of  counsel  with  the  petitioner,  and  it  appear- 
ing that  the  commission  awarded  in  this  matter  has  been  duly 
executed,  and   returned   into   this   court,  with   an   inquisition 

(a)  The  decree  will  not   be  dated  of  the  petitioner,  a  transcript  of  the 

and  filed  until  the  expiration  of  ten  proceedings.    Whereupon  application 

days   after  the   inquisition   shall   be  should  be  made  to  the  Orphans'  Court 

returned  into   the   office.     Rule  174.  of  the  county  where  the  idiot,  lunatic 

Upon   tlie   filing  of  the  decree  the  or  habitual  drunkard  resides  for  the 

clerk  will  tax  the  costs  of  the  proceed-  appointment   of   a    guardian   of    his 

ings  and  prepare,  under  the  seal  of  person  and  estate.     Rev ,  "Lunatics," 

the  court,  and  transmit  to  the  solicitor  ^  1 ;  Rev.  Sup.,  "Drunkards,"  |  1. 


PROCEEDINGS   RESPECTING    LUNATICS,  ETC.  655 

thereto  annexed,  taken  before  ,  and  ,  com- 

missioners in  the  said  commission  named,  and  bearing  date  the 
day  of  ,  eighteen  hundred  and  ,  by  which 

the  jurors  who  passed  upon  that  inquiry  have  found  that  the 
said  ,  of  ,  in  the  township  of  ,  in  the  county 

of  ,  was,  at  the  time  of  taking  that  inquisition,  a  lunatic 

and  of  unsound  mind,  and  does  not  enjoy  lucid  intervals,  so  that 
he  is  not  capable  of  the  government  of  himself,  his  lands,  tene- 
ments, goods  and  chattels;  and  that  he  has  been  in  the  same  state 
of  lunacy  for  the  space  of  years  last  past  and  upward ;  and 

that  at  the  time  of  taking  said  inquisition  he  was  seized  of,  or 
entitled  to,  real  and  personal  estate,  as  is  mentioned  in  the  said 
inquisition  :  It  is  thereupon,  on  this,  &c.,  ordered  and  decreed 
by  the  Chancellor,  that  the  said  proceedings  be  in  all  things  con- 
firmed ;  and  that  the  clerk  of  this  court  transmit  to  the  Orphans' 
Court  of  the  county  of  ,  a  certified  copy  of  all  the  proceed- 

ings in  the  case,  agreeably  to  the  statute  in  such  case  made  and 
provided. 

Rule  when  inquisition  is  returned  not  finding  a 
lunatic,  (a) 

{Title  of  matter  and  date.) 

Upon  filing  the  inquisition  returned  in  this  matter,  by  which 
it  appears  that  the  jury  of  inquest,  summoned,  charged  and 
sworn  to  inquire,  &c.,  find  that  the  said  ,  at  the  time  of 

taking  said  inquisition,  was  not  a  lunatic,  but  was  of  sound 
mind,  &c. :  It  is  ordered,  that  the  said  verdict  and  return,  and 
all  the  matters  and  things  therein  contained,  do  stand  confirmed, 
according  to  the  tenor  and  true  meaning  thereof,  unless  the  peti- 
tioner shall,  within  eight  days  after  service  upon  him  of  a  copy 
of  this  rule,  show  unto  this  court  good  cause  to  the  contrary. 

Entered  by  ,  solicitor  of  the  said 

By  the  court.  Clerk. 

(a)  It  is  not  the  practice  to  enter  of  this  rule  with  proof  of  service 
an   order   absolute  upon   the   return       tliereof. 


656  FORMS   OF   PLEADINGS. 

Petition    to    set    aside    inquisition    in    case    of  a 

lunatic.(a) 

(Address.) 

The  petition  of  ,  of  the  township  of  ,  in  the  county 

of  ,  in  this  state,  respectfully  shows,  that  in  the  month  of 

,  in  the  year,  &c.,  he  having  been  deprived  of  his  reason 
by  the  providence  of  God,  an  application  was  made  to  the  Chan- 
cellor on  the  day  of  ,  of  the  ensuing  year,  for  a  com- 
mission in  the  nature  of  a  writ  de  lunatico  inquirendo,  to  issue  out 
of  the  Court  of  Chancery  of  this  state,  to  inquire  of  the  lunacy  of 
your  petitioner,  which  commission  was  duly  ordered  and  directed 
to  ,  and  ,  commissioners,  before  whom,  after- 
wards, to  wit,  on  the  day  of  ,  in  the  year  aforesaid, 
at  ,  in  the  township  of  aforesaid,  an  inquest  was 
had  and  taken,  by  which  it  was  found,  among  other  things,  that 
your  petitioner  at  the  time  thereof  was  a  lunatic  not  enjoying 
lucid  intervals,  so  that  he  was  not  capable  of  the  government  of 
himself,  his  lands  and  tenements,  goods  and  chattels;  and  further,, 
that  he  was  seized  and  possessed  of  considerable  real  and  personal 
estate  in  said  county;  that  that  inquisition  was  duly  returned  into 
the  said  court  and  a  decree  entered  thereon,  on  the  day  of 
,  eighteen  hundred  and  ;  that  a  copy  of  said  pro- 
ceedings having  been  transmitted  to  the  Orphans'  Court  of  the 
said  county  of  ,  was  by  the  said  Orphans'  Court 
appointed  guardian  of  the  person  and  property  of  your  peti- 
tioner, pursuant  to  the  direction  of  the  statutes  in  such  case  made 
and  provided  ;  that  said  guardian,  as  your  petitioner  is  informed, 
in  all  things  complied  with  the  requirements  of  law,  and  took 
upon  himself  the  burthen  of  said  appointment ;  that  shortly  after 
the  taking  of  the  said  inquisition  your  petitioner  was  restored  to 
his  reason  and  understanding ;  that  he  has  had,  and  still  has,  the 
management  and  oversight  of  his  farm  and  all  his  affairs,  and 
that  he  transacts  all  his  own  business ;  that  some  portions  of  his 

(a)  A  petition  to  set  aside  an  in-  who   lias  been  found  a  lunatic,  and 

quisition   of  lunacy  on   return  of  a  not  in  the  names  of  his  nearest  rela- 

lunatic  to  a  sound  state  of  mind  and  tions.  Shelf,  on  Lun.  204  ;  In  re  Price, . 

capacity  to  manage  his  own  a  flairs,  4  Hal.  Ch.  533. 
should  be  in  the  name  of  the  person 


PROCEEDINGS    RESPECTING    LUNATICS,  ETC.  657 

property,  such  as  bonds,  notes  and  mortgages,  are  in  the  hands 
and  possession  of  his  guardian  at  this  time,  (or  stating  the  facts, 
as  the  ease  may  be.)  Your  petitioner  therefore  prays,  that  said 
guardian  may  be  discharged  from  any  further  or  other  duties  in 
relation  to  the  care  of  the  person  and  property  of  your  petitioner; 
that  he  be  authorized  and  directed  to  restore  to  your  petitioner 
the  property  he  now  has  in  his  hands,  and  that  the  said  inquisi- 
tion and  proceedings  thereon  may  be  suspended  and  determined  ; 
and  that  your  petitioner  may  have  such  further  or  other  relief 
as  in  justice  and  equity  he  is  entitled  to. 

{Signature  of  petitioner.) 
[Signature  of  counsel  with  petitioner.) 

Affidavit  in  support  of  petition  to  set  aside  inqui- 
sition. Commence  as  in  general  form  on  page  278,  and  continue, 
stating  facts  showing  a  restoration  to  a  sound  state  of  mind. 

Petition  to  set  aside  inquisition  in  ease  of  an 
habitual  drunkard. (a) 

In  the  matter  of  ,  of,  <fec., 

alleged  to  be  an  habitual  drunkard. 

The  petition  of  ,  of  the  township  of  ,  in  the 

county  of  ,  and  State  of  New  Jersey,  respectfully  shows, 

that  by  an  inquisition  taken  on  the  day  of  ,  eighteen 

hundred  and  ,  your  petitioner  was  found  to  be  an  habitual 

drunkard,  so  that  he  was  not  capable  of  managing  his  estate, 
(or,  "was  wasting  his  estate;")  that  on  the  day  of  , 

eighteen  hundred  and  ,  the  said  finding  and  inquisition 

(a)   On   a  petition  by  an  Iiabitual  taken  thereon  and  proceedings  relat- 

drunkard,  setting  fortli  tliat  he  is  re-  ing  thereto  be  altogether  superseded 

formed,   and    has   become  liabitnally  and  determined.     Bev.,  "Drunkards," 

sober,  and  has  continued  so  for  one  §  7.     The  practice  in  proceedings  to 

year  next  preceding,  it  shall  be  law-  supersede  a  commission    in   cases   of 

ful  for  the  Chancellor  to  take  proof  habitual  drunkenness  should  be  sub- 

of  the  fact,  and  if  he  shall  be  satisfied  stantially    the    same   as   in   cases   of 

of  the  truth  of  the  allegation  in  such  lunacy,     flatter  of  Weis,  1  C.  E.  Or. 

petition,  to  make  an  order  that  the  318. 
commission    issued    and    incpiisition 

2r 


658  FORMS   OF   PLEADINGS. 

were  in  all  things  confirmed  by  the  decree  of  this  court ;  and 
that  subsequently,  in  the  month  of  ,  eighteen  hundred 

and  ,  the  Orphans'  Court  of  said  county  of  appointed 

guardian  of  the  person  and  estate  of  your  petitioner,  and 
that  thereupon  the  said  guardian  took  charge  of  the  estate  of 
your  petitioner. 

And  your  petitioner  further  shows  unto  your  Honor,  that  he 
is  reformed  and  has  become  and  is  now  habitually  sober,  and 
has  been  and  continued  so  for  more  than  one  year  next  preced- 
ing this  time. 

Your  petitioner  therefore  prays,  that  an  order  may  be  made 
by  your  Honor,  that  the  commission  issued  to  inquire  whether 
your  petitioner  was  an  habitual  drunkard,  and  the  inquisition 
taken  thereon,  and  all  proceedings  relating  thereto,  be  altogether 
superseded  and  determined;  and  that  the  estate  belonging  to 
your  petitioner  now  in  the  possession  or  under  the  control  of 
the  said  ,  guardian  as  aforesaid,  be  restored  forthwith  to 

your  petitioner.  [Signature  of  petitioner.) 

{Annex  affidavit  of  verification  of  petition,  also  afiUdavits  of  other 
'persons,  showing  reformation,  &c.) 

Order  of  reference  to  a  master  on  petition  to  set 
aside  inquisition,  (a) 

{Title  of  matter.) 
This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  petitioner,  and   upon  reading  and  filing   the  petition 

(a)  In  New  Jersey  it  is  the  practice  ex  parte  affidavits,  even  with  the 
to  refer  the  matter  in  the  first  instance  assent  of  the  guardian.  Ihid.  Tlie 
to  a  master,  who  will  appoint  a  time  usual  course  is  to  refer  the  petition 
and  place  for  hearing,  upon  service  to  a  master  to  take  proofs  as  to  the 
upon  him  of  a  copy  of  this  order,  and  state  of  mind  of  the  petitioner,  and 
summon  the  guardian  and  all  persons  to  report  the  proofs  and  his  opinion 
interested  to  appear  before  him  at  thereon.  But  though  the  master  re- 
the  time ;  and  upon  investigation  ports  the  proofs  and  his  opinion 
and  examination,  he  will  report  as  to  thereon  that  the  petitioner  is  re- 
the  truth  of  the  facts  alleged  in  the  stored,  the  Chancellor,  in  his  discre- 
petition, to  the  Chancellor.  Matter  tion,  may  direct  the  petitioner  to 
of  Weis,  1  C.  E.  Gr.  318.  A  com-  appear  before  him  for  inspection  and 
mission  will  not  be  superseded  upon  examination.  In  re  Rogers,  1  Hal. 
a  hearing  without  notice,   nor  upon  Ch.  46 ;  Matter  of  Weis,  supra. 


PROCEEDINGS   RESPECTING    LUNATICS,  ETC.  659 

and  the  affidavits  thereto  annexed :  It  is,  on  this,  &c.,  ordered, 
that  it  be  referred  to  ,  one  of  the  special  masters  of  this 

court,  to  inquire  whether  the  said  *  is  restored  to  his 

reason  and  understanding,  and  is  of  sound  mind  ;  {or  in  case  of 
habitual  drunkenness,  after  *  "  is  reformed  and  has  become  habit- 
ually sober,  and  has  continued  so  for  one  year  next  preceding 
the  presentation,  of  his  petition ;  "(a)  and  that  he  make  report 
thereof  with  all  convenient  speed  to  this  court. 

And  it  is  further  ordered,  that  due  notice  of  the  time  and 
place  of  such  inquiry  be  given  by  the  said  petitioner,  or  his 
solicitor,  to  the  said  guardian. 

Master's  report  on  petition  to  set  aside  inquisi- 
tion.!^) 

{Title  of  matter.) 

In  pursuance  of  an  order  of  this  court  entered  in  this  cause, 
bearing  date  on  the  day  of  ,  eighteen  hundred  and 

,  I  have  been  attended  by  the  solicitor  of  the  petitioner, 
and  by  said  petitioner  himself,  and  also  by  ,  the  guardian 

of  said  petitioner,  and  in  the  presence  of  the  parties  attending 
me  I  have  considered  of  the  matters  thereby  referred  to  me,  and 
have  inquired  thereof  as  well  by  the  examination  of  witnesses 
produced  before  me  on  the  part  and  behalf  of  the  said  as 

by  the  personal  examination  of  the  said  himself;  and  I 

do  hereby  certify  and  report  that  the  said  *  is  now  restored 

to  his  reason  and  understanding,  and  is  of  sound  mind,  {or  in 
case  of  habitual  drunkenness,  insert  after  *,  "is  reformed  and  has 
become  habitually  sober,  and  has  continued  so  for  one  year  next 
preceding  the  presentation  of  his  said  petition.")  And  I  here- 
with transmit  to  the  court  the  depositions  of  the  witnesses  exam- 
ined before  me  in  the  above  matter. 

Respectfully  submitted,  this  day  of  ,  &c. 

{Signature  of  master.) 

(a)  Rev.,  "Drunkards,"  ?  7.  party  at  whose  instance  the  commis- 

(6)  The  master  may,   if  it  should  siou  was  sued  out,  or  other  person  in- 

appear   necessary   or    expedient,   re-  terested,  shoukl  have  an  opportunity 

quire  the  evidence  of  physicians  or  of  appearing  before  the  master.   3Iat- 

the  personal  attendance  of  the  peti-  ter  of  Wets,  1  C.  E.  Gr.  320. 
tioner.     The  guardian  as  well  as  the 


660  FORMS   OF   PLEADINGS. 

Final  order  on  petition  to  set  aside  inquisition  in 
case  of  a  lunatic.(«) 

{Title  of  matter.) 

Upon    opening   the   matter  this  day  to  the   Chancellor,  by 

,  of  counsel  with  said  applicant,  and  it  appearing  to  the 

court,  as  well  by  the  report  of  ,  the  master  to  whom  this 

matter  was  referred  by  an  order  of  this  court,  bearing  date  on 

the  day  of  last,  as  also  by  the  testimony  taken  by 

the  said  master,  annexed  to  and  accompanying  the  said  report, 

that  the  said  is  restored  to  his  reason  and  understanding, 

and  is  of  sound  mind  :  It  is,  on  this,  &c.,  by  ,  Chancellor 

of  the  State  of  New  Jersey,  ordered,  that  the  said  master's  report 

be  in  all  things  confirmed,  and  that  the  said  inquisition  of  lunacy, 

taken  before  ,  and  ,  commissioners,  the 

day  of  ,  by  which,  among  other  things,  the  said 

was  found  to  be  a  lunatic,  be  forthwith  superseded  and 

determined. 

And  it  is  further  ordered,  that  ,  the  guardian  appointed 

by  the  Orphans'  Court  of  the  said  county  of  to  take  the 

charge  and  care  of  the  person  and  estate  of  the  said  ,  do 

deliver,  pay  over  and  restore  unto  the  said  all  the  estate, 

real  and  personal,  by  him,  the  said  guardian,  received,  belonging 
to  the  said  ,  after  deducting  thereout  his  necessary  costs, 

charges  and  commissions  in  the  execution  of  his  trust. 

Order  to  set  aside  inquisition,  &c.,  in  case  of  an 
habitual  drunkard. 

{Title  of  matter.) 

having  presented  a  petition  to  the  Chancellor  setting 

forth  that  he  is  reformed  and  has  become  habitually  sober,  and 

has  continued  so  for  one  year  next  preceding  the  presentation  of 

such  petition,  and  the  matter  having  been  referred  to  ,  one 

(a)  Upon  obtaining  the  order,  get  The  Chancellor,  in  his  discretion, 

a  certified  copy  of  the  proceedings  may  discharge  the  guardianship  on 

and  file  them  in  the  Orphans'  Court,  the  ground  of  restored  sanity,  or  direct 

and  proceed  to  a  settlement  with  the  an  issue  to  try  the  question.     In  re 

guardian.  Boijers,  1  Hal.  Ch.  46. 


PROCEEDINGS   RESPECTING   LUNATICS,  ETC.  661 

of  the  special  masters  of  this  court,  to  examine  into  the-condi- 
tion  of  the  said  ,  take  proof  of  the  truth  of  the  allegations 

contained  in  said  petition,  and  report  the  evidence  by  him  taken 
and  his  opinion  thereon  to  this  court,  and  the  said  master  having 
made  report  that  the  said  is  reformed  and  has  become 

habitually  sober,  and  has  continued  so  for  one  year  next  preced- 
ing the  presentation  of  said  petition,  and  the  said  report  appear- 
ing to  the  court  to  be  sustained  by  the  proof  taken  before  said 
master :  It  is,  on  this,  &c.,  ordered,  that  the  commission  issued 
on  the  day  of  ,  eighteen  hundred  and  ,  to 

inquire  whether  said  was  an  habitual  drunkard,  and  the 

inquisition  taken  thereon  on  the  day  of  ,  eighteen 

hundred  and  ,  finding  him  an  habitual  drunkard,  and  all 

proceedings  relating  thereto,  be  and  the  same  are  hereby  alto- 
gether superseded  and  determined,  and  ,  the  guardian  of 
the  said  ,  is  hereby  ordered  and  directed  to  restore  to  the 
said  the  whole  of  the  estate  in  his  hands  or  under  his 
control  belonging  to  the  said  ,  after  deducting  the  neces- 
sary costs,  charges  and  commissions  of  executing  his  trust. 

Petition  by  guardian  for  sale  of  land  of  lunatic, 
or  idiot,  or  habitual  drunkard.(a) 

{Address.) 
The  petition  of  ,  of,  &c.,  respectfully  shows,  that  on 

the  day  of  ,  &c.,  one  ,  then  and  now  a  resi- 

dent of,  &c.,  was,  by  a  decree  of  this  honorable  court,  declared 

(a)  Whenever  any  idiot,  lunatic  or  application  ;    and    whenever   and   as 

habitual  drunkard  shall  be  seized  of  often  as  it  shall  satisfactorily  appear 

any  lands  or  real  estate,  and  it  shall  to  the  court  that  the  interest  of  such 

be  represented  to  the  Chancellor  on  idiot,   lunatic  or   habitual   drunkard 

behalf  of  such  idiot,  lunatic  or  habit-  require?,  or  will  be  substantially  pro- 

ual  drunkard,  by  his  or  her  guardian  moted  by  a  sale  of  his  or  her  lands  or 

or  guardians,  duly  appointed  in  the  real  estate,  or  of  any  part  or  parts 

manner  prescribed  in  this  act,  that  his  thereof,   the    Chancellor   may   order 

or  her  interest  requires  that  the  said  and  direct  the  guardian  or  guardians 

lands  should  be  sold  or  disposed  of,  of   such    idiot,   lunatic   or    habitual 

the  Chancellor  may  proceed  in  a  sum-  drunkard   to  sell   or   dispose   of  the 

mary  manner,  by  reference  to  a  mas-  whole  or  any  part  or  parts  of  such 

.ter,  to  inquire  into  the  merits  of  such  lands  or  real  estate  in  such  way  and 


662  FORMS   OF   PLEADINGS. 

to  be  a  lunatic  (or  "an  idiot")  upon  on  inquisition  of  lunacy  {or 
"  idiocy  ")  returned  into  this  court,  as  by  the  proceedings  thereon 
now  of  record  in  this  court  will  appear. 

And  your  petitioner  further  shows,  that  on,  &c.,  your  peti- 
tioner was  appointed  by  the  Orphans'  Court  of  the  county  of 
,  guardian  of  the  person  and  estate  of  said  ;  that 

he  duly  qualified,  and  is  now  acting  as  such  guardian. 

And  your  petitioner  further  shows,  that  the  said  lunatic  {or 
"  idiot")  is  seized  of  a  certain  farm  or  tract  of  land  situate,  &c., 
{describe  land.) 

And  your  petitioner  further  shows,  that  the  interest  of  the 
said  lunatic  {or  "  idiot ")  requires  that  the  said  lands  be  sold  {or 
"disposed  of;")  that,  &c.,  {state  here  the  particular  reasons  that 
render  a  sale  necessary  and  proper.) 

Your  petitioner  therefore  prays,  that  the  merits  of  this  appli- 
cation may  be  inquired  into,  and  that  a  sale  of  the  said  premises 
may  be  ordered,  in  such  manner  and  with  such  restrictions  a? 
the  interest  of  the  said  lunatic  {or  "idiot")  may  require,  and  as 
to  your  Honor  shall  seem  expedient. 

{Signatures  of  petitioner  and  counsel.) 

State  of  New  Jersey,   ■» 
county  of  ,     j     ' 

,  the  above-named  petitioner,  being  duly  sworn,  on  his 
oath  saith,  that  the  matters  and  things  set  forth  in  the  above 
petition  are  true. 

Sworn  and  subscribed  before  me, 
the  day  of  ,  &c. 

manner  and  with  such  restrictions  as  ard.     Eev ,  "Lunatics,"  §7;  amended 

shall  be  deemed  expedient ;  provided,  hj  Rev.  Sup.,   "Lunatics,"  §   2.     The 

however,  that  nothing  in  this  act  con-  amendment  does   not   in   terms    au- 

tained  shall  authorize  the  sale  of  any  thorize  the  sale  of  lands  of  an  habitual 

lands  or  real  estate  contrary  to   the  drunkard  at  private  sale,  but  by  a 

provisions  of  any  last  will  and  testa-  recent   statute  all  sales  may  be   pri- 

ment,  or  of  any  conveyance,  by  which  vate.     See  page  420,   ante,  note   (a). 

the  same  were  devised  or  granted  to  Bule   175;    Bev.,   '■Drunkards,"    §   8. 

such  idiot,  lunatic  or  habitual  drunk-  See  also  Par)iph.  L.,  1888,  p.  540. 


PROCEEDINGS   RESPECTING   LUNATICS,  ETC.  663 

Order  to  refer  merits  on  application  for  sale  of 
land  of  lunatic  or  idiot.(a) 

{Title  of  matter.) 

Application,  by  petition,  having  been  made  to  the  Chancellor, 
by  ,  guardian  of  ,  a  lunatic  [or  "idiot")  residing 

in,  &c.,  representing  that  said  lunatic  {or  "idiot")  is  seized  in 
fee  simple  of  certain  lands  and  real  estate  situate  in,  &c,,  particu- 
larly mentioned  and  described  in  the  said  petition ;  and  repre- 
senting further,  that  the  interest  of  the  said  lunatic  {or  "idiot") 
requires  that  the  said  lands  and  real  estate  should  be  sold  {or 
"disposed  of,")  with  his  reasons  therefor  :  It  is,  on,  &c.,  ordered 
by  the  Chancellor,  that  it  be  referred  to  ,  one  of  the 

special  masters  of  this  court,  to  inquire  into  the  merits  of  said 
application,  and  to  ascertain  and  report  the  actual  value  of  the 
said  real  estate;  and  whether  the  interest  of  said  lunatic  {or 
"idiot")  requires  and  will  be  substantially  promoted  by  a  sale 
of  said  lands,  or  any  part  thereof,  and  if  so,  in  what  manner 
and  with  what  restrictions  such  sale  ought  to  be  made;  and 
also  in  what  amount  the  guardian  should  be  required  to  give 
security,  and  whether  the  sureties  offered  by  him  are  sufficient ; 
and  that  said  master  report  to  this  court  with  all  convenient 
speed. 

(a)  Upon  the  petition  being  pre-  the  requisite  value  according  to  the 
sented  to  the  court,  if  it  satisfactorily  176th  rule;  and  what  should  be  the 
appear  that  there  is  reasonable  ground  penalty  of  the  guardian's  bond  in  con- 
fer the  application,  there  shall  be  a  formity  to  that  rule,  and  also  to  ascer- 
reference  to  a  special  master  to  ascer-  tain  the  truth  of  the  facts  stated  in 
tain  and  report  what  is  the  actual  the  petition,  and  whether  the  interest 
value  of  the  real  estate  proposed  to  be  of  the  idiot,  lunatic  or  drunkard  re- 
sold or  disposed  of,  and  of  each  sepa-  quires  that  said  real  estate  or  any 
rate  lot  or  parcel  thereof;  the  suffi-  part  thereof  should  be  sold  or  disposed 
ciency  of  the  sureties  offered  by  the  of,  and  the  particular  reasons  upon 
guardian,  and  whether  each  is  worth  which  his  opinion  is  founded,  and  the 
double  the  value  of  the  real  estate  terms  and  conditions  upon  which  it 
l)ioposed  to  be  sold;  or  whether  the  should  be  sold  or  disposed  of,  and 
land  proposed  to  be  mortgaged  by  way  fixing  a  price  below  which  it  should 
of  security  is  unencumbered,  and  of  not  be  sold.    Rule  177. 


664  FORMS   OF   PLEADINGS. 

Report  of  master  in  pursuance  of  foregoing  order. 

The  report  is  in  general  in  the  form  of  that  on  page  672, 
embracing  the  subjects  of  inquiry  directed  by  the  order  of  reference. 

Order   to    guardian    to    sell    land    of    lunatic    or 
idiot.(a) 

{Title  of  matter.) 

On  reading  and  filing  the  report  of  ,  one  of  the  special 

masters  of  this  court,  made  in  the  above  matter,  and  bearing 
date  the  day  of  ,  eighteen  hundred  and  ,  from 

which  it  appears  satisfactorily  to  the  Chancellor  that  the  interest 
of  the  said  lunatic  (or  "idiot")  requires  and  will  be  substantially 
promoted  by  a  sale  of  his  real  estate,  mentioned  in  the  petition 
in  this  matter,  for  reasons  stated  in  said  report :  It  is  now,  on 
this  day  of  ,  eighteen  hundred  and  ,  on  motion 

of  ,  of  counsel  with  the  applicant,  ordered  by  the  Chan- 

cellor, that  the  said  guardian  do  sell  the  said  lands  in  the  said 
petition  particularly  described,  [at  public  auction,(6)  to  the 
highest  bidder,]  (or,  "  in  such  way  and  manner,")  and  upon 
such  terms  as  to  credit  and  security  as  said  guardian  shall  deem 
safe  and  most  expedient  for  the  interest  of  the  said  lunatic 
{or  "idiot J ")  [and  that  he  give  public  notice  of  the  time  and 
place  of  such  sale,]  and  in  all  respects  conduct  the  same  accord- 
ing to  the  provisions  of  the  statutes  in  such  case  made  and 
provided ;  and  that  before  any  deed  is  executed,  the  said  sale 
and  the  terms  thereof  shall  be  reported  to  the  Chancellor  by 
the  said  guardian,  in  writing,  and  upon  his  oath  or  affirmation, 
to  the  end  that  the  same  may  be  passed  upon  by  the  Chancellor 
before  the  sale  is  confirmed,  and  that  he  may  make  such  order 
as  he  shall  deem  fit  touching  the  investment  of  the  proceeds. 

(a)  No  sale  of  any  real  estate,  made  considered,  relative  to  the  statutes  of 

pursuant  to  or  by  virtue  of  the  pro-  descents    and    distribution,    and    for 

visions  of  this  act,  shall  give  to  any  every  other  purpose,  as  real  estate  of 

person  any  other  or  greater  interest  the  same  nature  as  the  property  sold, 

in  the  proceeds  of  such  sale  than  he  Rev.,  "Lunatics,"  §  9.     The  sale  may 

or  she  had,  or  would  have  had,  in  the  be    private.      Rev.   Slip.,    "Lunatics," 

lands,  provided  the  same  had  not  been  |  2. 

sold ;  but  the  said  proceeds  shall  be  (6)  Id.,  §  7. 


PROCEEDINGS   EESPECTING   LUNATICS,  ETC.  665 

Report  of  sale  of  land  of  lunatic  or  idiot. (a) 

{Title  of  matter.) 

In  pursuance  of  an  order  made  in  the  above  matter  by  the 
Chancellor,  on  the  day  of  ,  eighteen  hundred  and 

,  directing  the  subscriber,  ,  the  guardian  of  the 

said  lunatic,  (or  "  idiot,")  to  sell  the  lands  of  the  said  lunatic 
(or  "  idiot ")  particularly  designated  in  the  petition  in  this 
matter,  and  referred  to  in  the  report  of  ,  one  of  the  special 

masters  of  this  court,  bearing  date  on  the  day  of  , 

eighteen  hundred  and  ,  I  do  hereby  report,  that  I  did, 

[by  public  advertisements,  signed  by  myself,  and  set  up  at  five 
or  more  public  places  in  the  county  of  ,  one  whereof 

was  in  the  township  {or  "  ward,"  if  in  a  city,)  where  said  real 
estate  is  situate,  at  least  four  weeks  next  before  the  time 
appointed  for  said  sale]  {continue  as  in  form  on  page  422,  to  the 
end  of  that  form,  and  add,  "And  I  do  further  report,  that  said 
sale  was  upon  the  following  terms,  to  wit,  {here  state  particularly 
the  terms  of  sale.) 

Respectfully  submitted,  this  day  of  ,  &c. 

Bond  of  guardian  on  sale  of  land  of  lunatic.(6) 
Know  all  men  by  these  presents,  that  we,  {principal  and  sureties,) 
of,  &c.,  are  held  and  firmly  bound  unto  the  Ordinary  of  the 

(a)  The  guardian  or  guardians  who  estate  in  the  premises  so  sold  as  the 

may  be  ordered  to  sell  any  lands  or  said  idiot  or  lunatic  sliall  be  seized  of 

real  estate   as   aforesaid,  shall,  after  or  entitled  to  at  the  time  of  making 

■making  such  sale,  report  the  same  in  said  order  by  the  Chancellor.     Rev., 

■writing,  under  oath  or  affirmation,  to  "Lunatics,"  §  8. 

the   Chancellor,   either    in    term    or  (6)  Every   guardian   who   may  be 

•vacation ;  and  if  the  Chancellor  shall  ordered  to  sell  any  lands  or  real  estate 

approve  such  sale,  he  shall  confirm  as   aforesaid,  shall,  before  or  at  the 

the  same  as  valid  and  efleclual  in  law,  time   of  making  the  report  of  such 

and  shall  direct  the  said  guardian  or  gale,  enter  into  bond  to  the  Ordinary 

guardians  to  execute  good  and  suffi-  of  this  state  and  his  successors,  Avith 

■  cient  conveyances  in  the  law  to  the  such  security  as  tlie  Chancellor  shall 

purchaser  or  jjurchasers  for  the  lands  deem   to  be   sufficient,  and  shall   so 

.and  real  estate  so  sold;    which  said  adjudge  and   approve,  in   the  order 

conveyances,  duly  executed  as  afore-  conlirming  said  sale,  conditioned  for 

said,  shall  vest  in  tlie  purchaser  or  the   faithful    discharge   of   tlie   trust 

purchasers  as   good  and    perfect   an  committed   to   such  guardian,    wliich 


666  FORMS   OP   PLEADINGS. 

State  of  New  Jersey  in  the  sum  of  dollars,  lawful  money 

of  the  United  States  of  America,  to  be  paid  to  the  said  the 
Ordinary  of  the  State  of  New  Jersey,  and  his  successors,  to 
which  payment  well  and  truly  to  be  made  we  do  hereby  bind 
ourselves,  and  our  and  each  of  our  heirs,  executors  and  adminis- 
trators, jointly  and  severally,  firmly  by  these  presents.  Sealed 
with  our  seals.     Dated,  &c. 

Whereas,  the  above-named  ,  as  guardian  of  , 

a  lunatic,  upon  application  to  the  Court  of  Chancery  of  New 
Jersey  for  the  sale  of  lands  of  said  lunatic,  has,  by  virtue  of 
an  order  of  said  court,  bearing  date,  &c.,  made  sale  of  said 
lands,  and  has  applied  to  the  said  Court  of  Chancery,  upon 
report  of  said  sale,  for  confirmation  thereof: 

Now  the  condition  of  the  above  obligation  is  such,  that  if  the 
said  {guardian)  shall  faithfully  discharge  the  trust  committed  to 
him  as  guardian  of  said  ,  a  lunatic,  then  this  obligation 

to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

Decree    confirming    sale    of    land    of    lunatic    or 

idiot.(a) 

( Title  of  matter.) 

On  reading  and  filing  the  report  of  ,  the  guardian  of 

the  said  lunatic,  (or  "idiot,")  whereby  it  appears  that,  in  pur- 
suance of  an  order  made  in  this  matter,  bearing  date,  &c.,  the 

bond  shall  be  filed  in  the  office  of  the  or  of  this  state,  and  in  no  other  way 
clerk  in  chancery;  and  in  case  the  whatever.  Rev./^ Lunatics"  §  11.  It 
same  shall  become  forfeited,  it  shall  shall  be  the  duty  of  every  such  guar- 
and  may  be  lawful  for  the  Chancellor  dian  to  render  to  the  Orphans'  Court 
to  order  the  same  to  be  prosecuted  in  from  whom  he  received  his  appoint- 
any  court  of  record,  at  the  request  of  ment  as  guardian,  a  true  account  of 
any  person  aggrieved  by  such  for-  the  administration  of  the  proceeds  of 
feiiure.  Rev.,  '"Lunatics,"  §  10 ;  Rules  the  sale  of  any  real  estate  ordered  to 
176-178.  be  sold  as  aforesaid,  at  the  times  and 
(a)  The  moneys  arising  from  any  in  the  manner  such  guardians  are 
sale  made  in  pursuance  of  this  act,  directed  to  account  in  and  by  the 
after  payment  of  the  costs  and  ex-  nineteenth  section  of  this  act.  Rev., 
penses  incident  thereto,  shall  be  put  ''Lunatics,"  §  12.  For  the  proceed- 
out  at  interest  on  good  and  sufficient  ings  and  practice  to  obtain  an  order 
security  of  unencumbered  real  estate,  to  turn  over  the  proceeds  of  the  sale 
or,  if  the  Chancellor  shall  so  direct,  of  the  real  estate  of  a  lunatic  or  an 
in  public  stock  of  the  United  States  idiot,  or  any  property  in  this  state  to 


PROCEEDINGS   RESPECTING   LUNATICS,  ETC.  667 

said  guardian  [having  given  public  notice,  according  to  law 
and  the  directions  of  said  order,  of  the  time  and  place  when 
and  where  the  same  would  be  sold,  at  the  time  and  place  so 
appointed]  did  sell  the  lands  in  the  petition  in  this  matter 
described,  [at  public  auction,]  to  ,  for  the  sum  of 

dollars,  [he  being  the  highest  bidder  therefor,]  upon  the  terms 
mentioned  in  said  report,  as  made  and  agreed  to  by  and  between 
the  said  guardian  and  said  {the  purchaser :)  It  is,  on  this 
day  of  ,  eighteen  hundred  and  ,  ordered,  that  the 

said  sale  be  and  the  same  is  hereby  approved  and  confirmed  as 
valid  and  effectual  in  law,  and  that  the  said  agreement  be  and 
the  same  is  hereby  also  confirmed  according  to  the  terms  and 
conditions  in  the  said  report  mentioned. 

And  it  is  further  ordered,  that  he  do  make,  execute  and  deliver 
to  the  said  {purchaser)  a  good  and  sufficient  conveyance  in  the 
law  for  the  lands  and  premises  so  purchased  as  aforesaid,  upon 
his  complying  with  the  terms  and  conditions  of  said  sale. 

And  it  is  further  ordered,  that  so  much  of  the  proceeds  of  the 
sale  as  shall  remain  after  payment  of  the  costs  and  expenses 
thereof,  and  of  this  application,  be  put  out  at  interest,  by  the 
said  guardian,  on  good  and  sufficient  security  of  unencumbered 
real  estate,  {or,  "  in  public  stock  of  the  United  States,"  or,  "  in 
the  bonds  of  this  state,")  for  the  benefit  of  the  said  lunatic  {or 
"idiot;")  and  that  the  said  guardian,  at  the  time  and  in  the 
manner  as  directed  by  the  statute  authorizing  such  sales,  render 
to  the  Orphans'  Court  of  the  county  of  ,  a  true  account 

of  the  administration  of  the  proceeds  of  said  sale. 

which  such  hinatfc,  Ac,  may  be  enti-  ''Married   Women,"  §  6.     Pamph.  L., 

tied,  to  a  non-resident  guardian,  see  1890,  p.  41  ;  Pamph.  L.,  1891,  p.  301. 

Rev.,   ''Lunalioi,"  H  14,  15;    Pamph.  As  to  release  of  an  inclioale  right  of 

i.,    1887,     p.    111.       Any    married  dower  of  a  person  mentally  incapaci- 

woman   whose   husband   may   be   an  tated,  see  Rev.  Sup.,   "Dower,"    I    2. 

ididt,    hmatic   or   of    unsound   mind.  Or  of  an  estate  in  dower,  Pamph.  L., 

*      *      *      may,   at   any  time   dur-  1892,  p.  201.     On  a  sale  of  tlie  same 

ing    the    continuance  of   such   disa-  the  Chancellor   may  direct  a  release 

bility,  sell,  release,  transfer  and  con-  to  be  made  by  a  master  in  chancery, 

vey  any  interest,  estate  or  right  slie  barring  the  dower,  and  a  bond  to  be 

may  have  in  any  real  proi)erty  in  the  given  to  the  guardian  of  the  dowress 

same  manner  and  with  like  cliect  as  to  secure  one-third  of  the  whole  pro- 

if  she  Averc  so/e  and  unmarried.     Rev,  ceedsofsalc.     Ibid. 


*668  FORMS  OF   PLEADINGS. 

And  it  is  further  ordered,  that  the  bond  of  said  guardian  to 
the  Ordinary  of  the  State  of  New  Jersey,  in  the  sum  of 
dollars,  with  and  as  sureties,  presented  by  said 

guardian  in  this  matter,  be  and  the  same  is  hereby  approved, 
and  that  it  be  filed  in  the  office  of  the  clerk  of  this  court. 

Guardian's    deed    for    land   of   lunatic,   &c.,  sold. 

This  indenture,  made  the  day  of  ,  eighteen  hundred 

^nd  ,  between  ,  of,  &c.,  guardian  of  ,  a 

lunatic  (or  as  the  case  may  be,)  of  (residence,)  of  the  first  part, 
and  ,  of,  &c.,  of  the  second  part :    Whereas,  by  a  certain 

order  of  the  Court  of  Chancery  of  the  State  of  New  Jersey, 
made  in  the  matter  of  the  application  for  the  sale  of  the  lands 
of  said  ,  a  lunatic  {or  as  the  case  may  be,)  bearing  date, 

.&c.,  it  was  ordered  and  adjudged  {set  forth  the  substance  of  the 
order  to  sell;)  and  whereas,  the  said  guardian,  having  [duly 
advertised  and]  sold  the  said  lands  pursuant  to  said  order  and  to 
the  statutes  in  such  case  made  and  provided,  reported  the  same  to 
the  Chancellor;  and  thereupon  the  said  Chancellor  approved 
the  said  sale,  and  ordered  and  directed  as  follows :  {insert  the 
order  of  confirmation.) 

Now,  this  indenture  witnesseth,  that  in  consideration  of  the 
said  sum  of  dollars  to  him  in  hand  paid  by  the  said  , 

the  receipt  whereof  is  hereby  acknowledged,  and  of  {here  insert 
the  further  consideration,  if  any,  according  to  the  terms  of  sale,) 
the  said  ,  guardian  as  aforesaid,  does  grant,  bargain,  sell 

and  convey  unto  the  said  ,  his  heirs  and  assigns,  all  that 

certain  tract  of  land  so  as  aforesaid  purchased  by  him  as  afore- 
said, situate,  &c.,  {describe  the  premises,)  with  the  appurtenances  : 
to  have  and  to  hold  unto  the  said  ,  his  heirs  and  assigns, 

to  his  and  their  only  proper  use,  benefit  and  behoof  forever,  as 
fully  as  the  said  {the  lunatic,  dx.,)  was  seized  of  or  entitled  to 
the  same  at  the  time  of  the  making  of  the  order  first  above 
mentioned. 

In  witness  whereof,  the  said  ,  guardian  as  aforesaid,  has 

hereto  set  his  hand  and  seal,  the  day  and  year  first  above  written. 
{Add  acknowledgment,  &c.) 


SALE   OP   infants'    LANDS.  66^ 


SALE   OF   INFANTS'   LANDS. 

Petition  for  order  for  sale  of  lands  of  infants.(a) 

In  Chancery  of  New  Jersey. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

The  petition  of  ,  of,  &c.,  {residence,)  respectfully  shows, 

that  he  is  the  general  guardian  (or  as  the  case  may  be)  of 
and  ,  of,  &c.,  (residence,)  infants  aged  and 

years  respectively  ;  and  that  each  of  said  infants  is  seized  of  (or 
as  the  case  may  be)  an  undivided  [third]  part  (subject  to  the 
dower  of  ,  their  mother,)  of  all  that  tract  of  land  situate, 

&c.,  (describe  land;)  that  the  said  tract  of  land  is  worth  the 
sum  of  dollars;   and  that  the  interest  of  said    infants 

requires  that  their  estate  therein  should  be  sold. 

And  your  petitioner  further  shows,  that  (state  here  the  situation 
of  the  property  and  the  particular  reasons  why  it  should  be  sold.) 

And  your  petitioner  further  shows,  that  the  said  is 

willing  to  unite  in  the  sale  of  said  land,  and  to  release  her  dower 

(a)   Whenever  an  infant  shall    be  cellor  stating  the  age  and  residence  of 

seized  of  any  lands  or  tenements,  or  the  infant,  the  situation  and  value  of 

be  entitled  to  any  term  to  come  in  the  real  estate  proposed  to   be  sold, 

any    lands    (this    includes — Bev.,    p.  with  a  description  of  the  same,  and 

484— rent  charges  and  rents  reserved  the  particular  reasons  which  render 

on  a  conveyance  in  fee,  and  any  and  a  sale  of  tlie  premises   necessary  or 

every  rent  granted  out  of  land)  in  this  proper,  and  praying  that  a  guardian 

state,  and  it  shall  be  represented  to  may  be  appointed  to  sell  the  same ; 

the  Chancellor,  on  behalf  of  said  in-  the  petition  shall  also  state  the  name 

fant  by  his  or  her  guardian  or  next  and  residence  of  the  person  proposed 

friend,  that   his   or   her  interest   re-  as  such  guardian,  the  relationship,  if 

quires  that  the   said   lands  or   term  any,  whicli  he  bears  to  the  infant,  and 

should   be  sold   or   disposed   of,    the  the   security   proposed   to   be   given. 

Chancellor  may,  in  a  summary  man-  Jiule  179. 

ner,    proceed    to     inquire    into    the  The  Chancellor  is  also  authorized 

merits  of  the  application;  and  from  l)y  statute  to  order  the  real  estate  of  a 

such  time,  the  infant,  so  far  forth  as  minor  to  be  sold,  converted  or  applied 

relates  to  such  property,  its  proceeds  for  the  purpose  of  reducing  or  dis- 

and  income,  shall  be  considered  as  a  charging     liens     and     encumbrances 

ward  of  the  Court  of  Chancery.    Rev.,  which  are  likely  to  disadvantage,  im- 

"Tnfant!',"  'i  1.     The  general  guardian  ])eril  or  sacrifice  his  lands,  and  the 

of  the  infant,  if  he  have  any,  and  if  lauds  may  be  mortgaged  to  diseliarge 

there  be  none,  some  relative  or  friend,  such  encumbrances.    Pamph.  L.,  1893, 

may  present  a  petition  to  the  Chan-  p.  498. 


670  FORMS   OF   PLEADINGS. 

in  the  same,  upon  the  condition  that  *  the  interest  of  such  part 
of  the  purchase-money  as  the  Chancellor  shall  deem  reasonable, 
be  secured  to  her  for  life,  {or  after  *,  "  such  sum  in  gross  as  the 
Chancellor  shall  deem  reasonable,  be  paid  to  her  in  commutation 
thereof.") 

And  your  petitioner  further  shows,  that  ,  of  {residence,) 

who  is  the  mother  {or  as  the  case  may  be,  or,  "  who  is  in  no  way 
related  to  the  said  infants,")  is  willing  to  become  the  special 
guardian  of  said  infants  in  this  matter,  to  sell  the  said  lands,  and 
that  and  ,  of  {residence,)  who  are  sufficient  for  the 

purpose,  according  to  the  rules  of  this  court,  are  offered  as  her 
sureties  for  the  just  performance  of  her  trust  as  such  guardian. 

Your  petitioner  therefore  prays,  that  the  merits  of  this  appli- 
cation may  be  inquired  into,  and  that  may  be  appointed 
the  special  guardian  of  said  infants  to  sell  said  lands,  in  such 
way  and  manner  and  with  such  restrictions  as  shall  be  deemed 
expedient. 

And  your  petitioner,  &c. 

{Signatures  of  petitioner  and  counsel ) 

Affidavit  of  verification. 

State  of  New  Jersey,  1 

county  of  ,      j     ' 

,  the  above-named  petitioner,  being  duly  sworn,  on  his 
oath  saith,  that  the  matters  and  things  set  forth  in  the  said  peti- 
tion are  true. 

{Jurat.)  {Signature.) 

Order  of  reference  as  to  the  merits  and  the  ap- 
pointment of  a  guardian.{a) 
In  the  matter  of  the  application  on  ^ 

behalf  of  and  ,  in-  V 

fants,  for  sale  of  lands.  J 

Application  having  been  made,  by  petition,  to  the  Chancellor 
on  behalf  of  and  ,  infants  aged  and 

(«)   Upon  the  petition  being  pre-  reference  to  a  special  master  to  ascer- 

sented  to  the  court,  if  it  satisfactorily  tain  the  truth  of  tlie  facts  stated  in  the 

appear  that  there  is  reasonable  ground  petition,  and  wliether  the  interest  of 

for  the  application,  there  shall  be  a  the   infant    requires    that    said    real 


SALE  OF   infants'    LANDS.  671 

years  respectively,  representing  that  said  infants  are  seized  [in  fee 
simple]  each  of  one  equal  undivided  part  of  the  lands  and 

premises  particularly  mentioned  and  described  in  the  said  peti- 
tion [as  tenants  in  common]  and  praying  a  sale  thereof,  and  that 
said  petitioner  be  appointed  guardian  of  said  infants  for  that 
purpose  :    It  is,  on  this  day  of  ,  eighteen  hundred 

and  ,  ordered  by  the  Chancellor,  that  it  be  referred  to 

,  one  of  the  special  masters  of  this  court,  to  inquire  into 
and  ascertain  the  truth  of  the  facts  stated  in  said  petition ;  and 
whether  the  interest  of  said  infants  requires,  and  will  be  sub- 
stantially promoted  by  a  sale  of  said  lands,  or  any  part  thereof, 
and  what  part ;  and  to  ascertain  also  the  value  of  the  said 
premises,  and  in  what  way  or  manner,  and  with  what  restric- 
tions as  to  price,  and  with  what  other  restrictions,  if  any,  such 
sale  ought  to  be ;  and  whether,  in  his  opinion,  said  premises  will 
increase  in  value  during  the  minority  of  said  infants,  and  if  yea, 
to  what  extent.  And  if  he  shall  ascertain  that  the  interest  of 
the  said  infants  requires  that  the  said  real  estate,  or  any  part 
thereof,  should  be  sold,  then  it  is  further  ordered,  that  he  ascer- 
tain and  report  whether  the  said  {the  person  named  as  speGial{a) 

estate,  or  any  part  thereof,  should  be  jjosed  to  be  sold,  the  sufficiency  of  the 

sold,  and  what  part,  and  the  particu-  sureties  ofiered  by  the  guardian,  and 

]ar  reasons  upon  which  his  opinion  is  whether   each    is   worth   double    the 

founded;   and   to   ascertain   also   the  value  of  the  infant's  interest  in  the 

value  of  the  property  proposed  to  be  real  estate  proposed  to  be  sold,  over 

sold,  and  of  each  separate  lot  or  parcel  and  above  all  debts ;  or  whether  the 

thereof,  and  the  terms  and  conditions  land   proposed   to   be   mortgaged   by 

•upon   which   it  should   be  sold,  and  way  of  security  is  unencumbered,  and 

fixing  a  price  below  which  it  should  of  the  requisite  value,   accordin^^  to 

not    be   sold,    and    whether,    in    his  the  180th  rule;  and  what  should  be 

opinion,  said  premises  will  increase  in  the  penalty  of  the  guardian's  bond, 

value   during   the    minority   of    said  in  conformity  with  the  provisions  of 

infant,  and  to  what  extent;  and  if  he  that  rule,  to  be  given  to  each  infant, 

shall  ascertain  that  the  interest  of  the  And  if  the  master  is  not  satisfied  with 

infant   requires   that    the    said    real  the  person  nominated  as  guardian,  or 

estate,  or  any  part  thereof,  should  be  with   the  security  proposed,  he  may 

sold,  then    to    ascertain   and   report  name  a  suitable  person  as  guardian, 

whether    the     person     proposed    as  and  state  what  further  or  other  secur- 

guardian  is  a  suitable  and  proper  i)er-  ity  should  be  given.     Rule  181. 
son  for  that  purpose,  what  is  the  age  (a)  Usually,  a  non-resident  will  not 

of  the  infant,  the  actual  value  of  the  be  appointed  such  guardian. 
infant's  interest  in  tlie  real  estate  pro- 


672  FORMS  OF   PLEADINGS. 

guardian)  is  a  suitable  and  proper  person  to  be  appointed 
guardian  of  said  infants,  to  sell  said  real  estate ;  what  are  the 
ages  of  said  infants,  the  actual  value  of  their  interests  in  the  said 
real  estate,  and  in  what  amount  the  guardian  should  be  required 
to  give  security,  and  whether  *  the  sureties  offered  are  sufficients 
{If  the  security  offered  by  the  petitioner  as  guardian  is  a  mortgage, 
add  ajter  *,  "the  land  proposed  to  be  mortgaged  by  way  of 
security  is  unencumbered  and  of  the  requisite  value,  according 
to  the  one  hundred  and  eightieth  rule  of  this  court,  and  what 
should  be  the  penalty  of  the  guardian's  bond,  in  conformity  to 
said  rule,  to  be  given  to  each  of  said  infants ;  and  that  said 
master  report  to  this  court  with  all  convenient  speed.") 

Master's  report  pursuant  to  foregoing  order. (a) 

[Title  of  matter.) 

I,  the  undersigned,  one  of  the  special  masters  of  this  court, 
do  respectfully  report  to  the  Chancellor,  that  pursuant  to  an 
order  of  reference  in  the  above  matter,  bearing  date  the 
day  of  ,  eighteen  hundred  and  ,  I  have  been  attended 

by  ,  solicitor  for  and  of  counsel  with  the  petitioner,  and 

have  taken  the  depositions  of  witnesses  hereto  annexed,  and  have 
considered  the  matters  referred  to  me  by  said  order. 

And  I  further  report,  that  all  the  material  facts  stated  in  the 
petition  in  this  matter  are  true,  and  that  the  interest  of  the  said 
infants  requires  and  will  be  substantially  promoted  by  a  sale  of 

(a)  Upon  a  reference  to  examine  cause  there  may  be  great  advantage 

and  report  whether  tlie  interest  of  in-  in   such  sale  to  the  tenant  for   life, 

fants  requires  and  will  be  promoted  when   the  benefit   to   the    infant    is 

by  a  sale  of  their  lands,  the  master  doubtful  or  inappreciable.   Inre  Steele, 

must  report  his  own  opinion  formed  4  C.  E.  Gr.  120.     In  such  case  the 

from  facts,  not  that  of  others,  nor  an  only   question   is,  will   the   property 

opinion  formed  upon  that  of  others  bring  as  mucli  now  as  it  will  at  the 

without  facts.     Mere  opinion  of  wit-  death  of  the  life  tenant  ?     The  testi- 

uesses  is  not  evidence.     In  re  Heaton,  mony  of  the  parent  life  tenant,  the 

6  C  E.  Gr.  221.     A  sale  will  not  be  child  being  remainderman,  that  the 

ordered  upon  the  unsupported  testi-  interest  of  the  latter  would  be  pro- 

niony  of  those  who  wonkl  be  clearly  moted  by  sale,  should   not  be  acted 

benefited  by  a  sale  at  the  expense  of  u]3on,   and   hardly  received.      In  re 

tlie  infant.     Ibid.     The  reversionary  Heaton,  supra. 
estate  of  an  infant  will  not  be  sold  be- 


SALE   OF   infants'    LANDS.  673 

the  whole  of  the  lands  described  in  the  said  petition ;  that  my 
reasons  for  this  opinion  are,  that  said  lands  and  premises  are 
productive  of  little  or  no  revenue;  that,  &c.,  {here  give  other 
reasons f  and  why  a  sale  is  advisable.) 

And  I  do  further  report,  that  in  my  opinion  the  said  lands 
will  not  increase  in  value  during  the  minority  of  said  infants,  to 
an  extent  equal  to  the  advantage  to  be  derived  from  a  sale. 

And  I  do  further  report,  that  in  my  opinion  it  will  be  for  the 
interest  of  the  said  infants  to  have  the  said  lands  sold  upon  the 
following  terms  and  conditions  :  (here  state  the  conditions.) 

And  I  do  further  report,  that  is  the  (describing  the 

relationship  of  the  person  named  for  special  guardian,  if  any,  or 
any  other  particulars  that  may  appear  proper ;)  that  he  is  a 
resident  of  the  county  of  ,  in  this  state, (a)  and  is  a  suit- 

able and  responsible  person  to  be  appointed  special  guardian  of 
the  said  infants  to  sell  the  said  lands. 

And  I  further  report,  that  the  persons  proposed  as  his  sure- 
ties, viz.,  and  ,  reside  in  the  said  county  of  , 
and  are  each  of  them,  in  property  and  estate,  sufficient  sureties 
under  the  rules  of  this  court,  (or,  "  that  the  real  estate  oiFered  as 
security  is  {describing  it  briefly,)  and  is  unencumbered,  and  worth 
the  sum  of  dollars,"  {double  the  value  of  the  premises  to  be 
sold,  not  estimating  the  improvements  thereon.) 

And  I  further  report,  that  the  said  is  of  the  age  of 

years,  and  the  said  of  the  age  of  years ;  that 

the  value  of  the  said  premises,  according  to  the  evidence  before 
me,  and  which  is  hereto  annexed,  is  the  sum  of  dollars ; 

and  that  the  said  should  give  bond  to  each  of  said  infants, 

in  the  sum  of  dollars,  *  with  the  said  and  as 

sureties,  {or  after  *,  "  secured  by  mortgage  of  said  real  estate 
offered  as  security." ) 

And  I  further  report,  that  the  said  is  willing  to  release 

her  dower  in  the  said  premises  upon  condition  that  *  a  gross 
sum  to  be  fixed  by  this  court  be  paid  to  her  in  lieu  thereof,  {or 
after  *  "  the  interest  of  a  reasonable  sum,  to  be  fixed  by  the 

{a)  A  non-resulent  will  not  usually  will  noii-resident  sureties  usually  be 
be    appointed     such     guardian,    nor       accepted. 

2s 


674  FORMS   OF   PLEADINGS. 

court,  and  to  be  permanently  invested  for  that  purpose,  be  paid 
to  her  for  her  life,  in  lieu  thereof.") 

And  I  further  report,  that  it  should  be  left  to  the  sound 
discretion  of  the  said  guardian  whether  the  said  lands  should  be 
sold  at  public  or  private  sale  ;(a)  but  that  the  same  f-hould  not 
be  sold  below  the  sum  of  dollars,  for  the  interest  of  the 

infants  in  the  same,  {or,  "the  prices  stated  in  Schedule  A,  hereto 
annexed,  for  the  interest  of  the  infants  in  the  several  parcels 
thereof  therein  specified.") 

Eespectfully  submitted,  this  day  of  ,  &c. 

{Signature  of  master.) 

Order  to  appoint  guardian  and  for  sale  of  infants' 

lands.  (6) 

{Title  of  matter.) 

Upon  reading  and  filing  the  report  of  ,  one  of  the 

special  masters  of  this  court,  bearing  date  the  day  of  , 

eighteen  hundred  and  ,  made  in  pursuance  of  an  order  of 

reference  in  this  matter,  dated  the  day  of  ,  eighteen 

hundred  and  ,  by  which  it  appears  that  is  a  proper 

person  to  be  appointed  guardian  of  the  infants  in  this  matter ; 
that  the  value  of  their  estate  for  the  sale  of  which  application  is 
made  is  dollars,  and  that  and  ,  of  the  county 

of  ,  who  are  offered  by  the  said  for  that  purpose, 

are  sufficient  sureties,  and  that  said  should  give  security 

(a)  The  mode  of  sale  is  entirely  in  cellor  may  appoint  another  guardian 
the  discretion  of  the  Chancellor;  all  in  the  place  of  such  deceased  guar- 
sales,  dispositions  and  conveyances,  dian,  who  shall  give  bond  according 
made  in  good  faith  in  pursuance  of  to  the  provisions  of  this  act,  and  shall 
and  in  conformity  with  the  direction  then  have  power,  by  the  order  of  the 
ofthecourt,  when  confirmed,  are  valid  Chancellor,  to  perform  and  shall  be 
and  effectual  as  if  made  by  the  infant  liable  to  all  the  duties,  requirements 
when  of  full  age ;  but  not  as  against  and  provisions  of  this  act,  and  all  pro- 
the  provisions  of  any  la^t  will  or  con-  ceedings  now  pending  or  to  be  com- 
veyance  by  which  the  property  was  menced  may  be  continued  and  con- 
devised  or  granted  to  the  infant.  Rev.,  ducted  by  said  newly-appointed  guar- 
''Ivfants,"  ^  3.  dian,  who  shall  be  invested  with  the 

(6)  In  case   of  the   death    of  any  same  power  and  authority  as  fully  as 

special    guardian    appointed   by   the  if  lie  had  been  originally  appointed. 

Chancellor  under  this  act,  the  Chan-  Rtr ,  "Infants"  I  11. 


SALE   OF   infants'    LANDS.  675 

to  each  of  said  infants  in  the  sum  of  dollars,  and  that  the 

interest  of  the  said  infants  requires  and  will  be  substantially 
promoted  by  a  sale  of  their  lands  mentioned  in  the  petition  for 
reasons  stated  in  said  report : 

It  is  thereupon,  on  this  day  of  ,  eighteen  hundred 

and  ,  ordered,  by  ,  Chancellor  of  the  State  of  New 

Jersey,  that  the  said  be  and   he  hereby  is  appointed 

guardian  in  this  matter  for  said  infants ;  and  that  said  guardian 
give  bond  to  each  of  the  said  infants,  in  the  penal  sum  of 
dollars,  with  and  as  his  sureties,  conditioned  for  the 

just  and  faithful  performance  of  the  trust  reposed  in  him,  and 
for  the  observance  of  such  orders  and  directions  as  the  Chan- 
cellor shall  from  time  to  time  make  in  the  premises  in  relation 
to  such  trust ;  the  said  bonds  to  be  approved  by  the  said  master, 
and  filed  with  the  clerk  of  this  court. 

And  it  is  further  ordered,  that  the  said  guardian  sell  all  and 
singular  the  right  and  title  of  the  said  infants  to  the  said  lands 
in  the  said  petition  particularly  described.  And  such  sale  may 
be  public  or  private,  as  the  guardian  shall  deem  most  advan- 
tageous for  the  infants,  but  not  below  the  sum  of  dollars, 
as  provided  in  the  master's  report,  and  upon  such  terms,  as  to 
credit  and  security,  as  he  shall  deem  safe  and  best  for  the  interest 
of  the  infants;  and  that,  before  executing  any  deeds  of  said  lands 
to  the  purchaser  or  purchasers  thereof,  the  guardian  report  to  the 
Chancellor  the  sale  and  the  terms  thereof,  in  writing,  upon  his 
oath,  to  the  end  that  the  same  may  be  passed  upon  by  the  Chan- 
cellor, and  that  he  may  make  such  order  as  he  shall  deem  fit 
touching  the  investment  and  disposition  of  the  proceeds,  if  the 
sale  be  confirmed. 

And  if  the  said  (the  widow)  shall  be  willing  to  join  in 

the  sale  and  release  her  dower,  and  shall,  before  the  sale,  agree 
by  writing,  with  said  guardian,  so  to  do,  she  shall  be  entitled, 
in  lieu  of  her  dower,  at  her  election,  either  to  the  payment  of 
such  sum  in  gross,  arising  from  the  sale,  as  the  Chancellor 
shall  judge  reasonable,  or  to  the  annual  interest,  during  her 
life,  of  such  part  of  the  sum  for  which  the  lands  in  which  she 
has  an  estate  in  dower  shall  be  sold,  as  shall  seem  reasonable  to 
the  Chancellor. 


676 


FORMS   OF   PLEADIKGS. 


Bond  of  guardian  to  sell  infants'  lands.(a)  Know 
all  men  by  these  presents,  that  we  {principal  and  sureties,)  all  of 
the  township  of  ,  in  the  county  of  ,  and  State  of 

Jersey,  are  held  and  firmly  bound  unto  {the  infant)  in  the  sum 
of  dollars,  lawful  money  of  the  United  States  of  America, 

to  be  paid  to  the  said  ,  his  executors,  administrators  or 

assigns ;  for  which  payment,  well  and  truly  to  be  made,  we  bind 
ourselves,  and  each  of  us,  by  himself,  our  and  each  of  our  heirs, 
executors  and  administrators,  firmly  by  these  presents.  Sealed 
with  our  seals.     Dated  the  day  of  ,  eighteen  hun- 

dred and 

The  condition  of  the  above  obligation  is  such,  that  if  the 
above-bounden  ,  who  was  appointed  by  the  Chancellor  of 

the  State  of  New  Jersey  guardian  of  the  said  ,  on  certain 

proceedings  before  him  for  the  sale  of  real  estate,  under  the 
provisions  of  the  act  entitled  "An  act  relative  to  the  sale  and 
disposition  of  the  real  estates  of  infants,"  by  an  order  dated  on 
the  day  of  ,  eighteen  hundred  and  ,  shall  justly 

and  faithfully  perform  the  trust  reposed  in  him  as  such  guardian, 
and  shall  observe  such  orders  and  directions  as  the  Chancellor 
shall,  from  time  to  time,  make  in  the  premises  in  relation  to  such 
trust,  then  the  above  obligation  to  be  void,  otherwise  to  remain 
in  full  force  and  virtue.  [l.  s.] 

[L.S.J 

SigQ(d,  sealed  and  deliv-  [l.  s.] 

ered  in  the  presence  of — 


(a)  The  bond  of  the  guardian  to  the 
infant  to  be  in  such  penalty  and  witli 
such  surety  as  the  ChanceUor  shall 
direct,  conditioned  for  the  just  and 
faithful  performance  of  the  trust  re- 
posed in  such  guardian,  and  for  the 
observance  of  such  orders  and  direc- 
tions as  the  Chancellor  shall  from 
time  to  time  make  in  the  premises  in 
relation  to  such  trust  Rev,  "Infant'i" 
^  2  ;  see  Ferris  v.  Bru^h,  1  Edv:.  Ch. 
572.  The  ordinary  bond  of  the  gen- 
eral guardian  does  not  embrace  the 
receipt  and  disi3osition  of  the  moneys 
arising   from   the  sale  of  the  lands. 


'  Muir  V.  Wilson,  Hopk.  512.  See  as  to 
the  piactice  on  the  application  of  a 
married  female  for  the  payment  of 
the  proceeds  of  the  sale  of  infants' 
lands  to  her  husband,  In  re  Finch, 
Clarke's  Ch.  Rep.  *53S.  The  amount 
and  character  of  the  security  are 
fixed  by  a  standing  rule  of  the  court. 
See  rule  180.  The  bond  must  be  ap- 
proved as  to  its  form  and  the  manner 
of  execution  by  the  master  who  re- 
ported on  the  merits  of  the  applica- 
tion, and  his  certificate  of  approval 
endorsed  thereon.     Rule  182. 


SALE   OF    infants'    LANDS.  677 

Endorsement  of  approval  of  bond  by  master.(a) 
I  approve  the  within  bond,  as  to  its  form  and  manner  of 
execution. 

Guardian's  report  of  sale  of  infants'  lands. (6) 
{Title  of  matter.) 

In  pursuance  of  an  order  made  in  the  above  matter,  by  the 
Chancellor,  on  the  day  of  ,  eighteen  hundred  and 

,  directing  the  subscriber,  ,  the  special  guardian 

appointed  in  this  matter,  to  sell  the  right  and  title  of  the  said 
infants  to  the  lands  particularly  designated  in  the  [schedule 
annexed  to  the]  report  of  ,  one  of  the  special  masters 

of  this  court,  bearing  date  the  day  of  ,  eighteen 

hundred  and  ,  I  do  hereby  report,  that  I  have  sold  the 

right  and  title  of  the  said  infants  in  the  said  lands,  at  private 
sale,  to  ,  of  the  city  of  ,  upon  the  following  terms,  to 

wit :    The  said  has  agreed  to  pay  the  sum  of 

dollars  for  the  interest  of  the  said  infants  in  the  said  lands  and 
premises,  whereof  the  sum  of  dollars  is  to  be  paid  in  cash 

on  the  delivery  of  a  deed  for  the  premises,  and  the  remaining 
dollars  of  the  consideration  money  are  to  be  secured  by 
the  said  by  his  bond,  payable  at  the  expiration  of  one 

year  from  the  date  of  the  said  deed,  with  lawful  interest  thereon, 
payable  semi-annually,  (or  as  the  case  may  be,)  and  a  mortgage 
upon  the  same  premises,  to  secure  the  payment  of  the  said  bond. 

And  I  further  report,  that  the  said  consideration  money,  when 
received  by  me,  will  be  chargeable  with  the  value  of  the  dower 
of  ,  she  having  agreed,  by  writing  delivered  to  me  prior  to 

said  sale,  to  join  in  the  same,  and  to  release  her  dower,  and  said 
lands  being  sold  free  from  her  said  dower. 

And  I  further  report,  that  the  sum  of  dollars  is  the 

greatest  sum  that  can  now  be  procured  for  the  property,  and  is 
not  below  the  price  fixed  in  the  report  of  the  master. 

(Signature.) 

(a)  S'K  ruh' 182.  Chancellor,  to  he  ai)pioved  In-   him 

(6)  Tlie  guardian  must  report  tlie  ]>cfore  a  conveyance  is  executed, 
rsale,  on  liis  oatli  (ir  affirmaliini,  to  the       Jter ,  "Infanta,"  'i  4. 


678  FORMS   OP   PLEADINGS. 

State  of  New  Jersey,  ss, —  ,  being  duly  sworn  according 

to  law,  on  his  oath  says,  that  the  matters  and  things  set  forth  in 
the  above  report  of  sale  are  true. 

(Jurat.)  (Signature.) 

Consent  of  widow  to  join  in  sale  and  release  her 

dower.(o) 

( Title  of  matter.) 

I,  ,  being  entitled  to  dower  in  the  lands  ordered  to  be 

sold  by  the  Chancellor  in  the  above  matter,  do  hereby  consent 
and  agree  with  ,  the  special  guardian,  that  he  may  sell 

my  estate  in  said  premises,  and  that  I  will  join  in  the  sale,  and 
release  my  said  estate  to  the  purchaser ;  and  that  I  will  accept, 
in  lieu  thereof,  *  a  gross  sum,  to  be  approved  by  the  Chancellor, 
(or  ajter  *,  "  the  investment  of  a  reasonable  sum,  to  be  approved 
by  the  Chancellor,  in  such  manner  that  the  interest  thereof  shall 
be  made  payable  to  me  during  my  life.") 

Dated 

Release  of  dower  to  purchaser  on  sale  of  infants' 
lands.(6)     Whereas,  the  special  guardian  of  ,  infants 

hereinafter  named,  has  been  ordered  by  the  Chancellor  of  the 

(a)  The  execmion  of  this  consent  Chancellor,  or   the   investment  of  a' 

is  to  be  duly  verified,  and  tlie  paper  reasonable  sum  with  like  approval,  in 

is  to  be  §led  in  the  office  of  the  clerk  such   manner    as    that    the    interest 

in  chancery.     Rev., ''Infants,"  ^  6.  thereof  be  made  payable  to  the  person' 

(6)  The  rule  of  the  court  seems  to  entitled  to  such  estate  by  the  cuitesy, 
contemplate  that  the  widow,  or  dow-  in  dower  or  for  life  or  years,  during 
ress,  should  join  in  the  guardian's  the  period  for  which  such  estate  would,, 
sale  to  the  purchaser.  Rule  183.  The  by  its  own  limitation,  continue,  the 
practice  is  to  endorse  the  release  of  Chancellor  may,  after  such  consent  in 
dower  on  the  guardian's  deed.  If  the  writing  has  been  filed  in  the  office  of 
lands  of  any  infant,  or  any  part  thereof,  the  clerk  in  chancery,  direct  the  pay- 
shall  be  subject  to  an  estate  by  the  ment  of  such  sum  in  gross  or  tlie  ia- 
curtesy  or  in  dower,  or  to  an  estate  for  vestment  of  such  sum,  as  he  shall 
life  or  years,  devised  to  any  woman  deem  reasonable  and  shall  be  accept- 
in  lieii  of  dower,  and  the  person  en  able  to  the  person  entitled  to  such 
titled  to  such  estate  shall  consent  in  estate,  in  manner  aforesaid;  which 
writing  to  accept  in  lieu  of  his  or  her  sum  so  paid  or  invested  shall  be  taken 
right  or  estate  in  such  lands,  either  a  out  of  the  proceeds  of  the  sale  of  the- 
gross  sum,   to   be  approved   by   the  real  estate  of  such  infant  so  subject 


SALE   OF   infants'   LANDS.  679 

State  of  New  Jersey,  in  a  certain  matter  entitled,  &g.,  to  sell  the 
interest  of  the  said  infants  in  the  lands  hereinafter  described ; 
and  whereas,  I,  of,  &c.,  have  consented,  in  writing,  to 

unite  in  said  sale,  and  to  accept  in  lieu  of  my  estate  in  dower 
in  said  lands,  out  of  the  proceeds  thereof,  a  gross  sum,  to  be 
approved  by  the  Chancellor,  {or,  "the  investment  of  a  reasonable 
sum,  to  be  approved  by  the  Chancellor,  in  such  manner  that  the 
interest  thereof  shall  be  made  payable  to  me  for  life  : " ) 

Therefore,  know  all  men  by  these  presents,  that  in  considera- 
tion of  the  premises  and  for  and  in  consideration  of  the  sum  of 
one  dollar  to  me  in  hand  paid  by  {the  purchaser,)  I  have  and  by 
these  presents  do  remise,  release  and  forever  quit  claim  unto  the 
said  (purchaser)  and  to  his  heirs  and  assigns  all  manner  of  dower 
and  right  or  action  of  dower,  which  I  now  have  or  might  have 
or  claim  of,  in  and  to  all  that  certain,  &c.,  (describe  land  by  metes 
avd  bounds,)  to  have  and  to  hold  unto  the  said  (purchaser,)  his 
heirs  and  assigns  forever. 

In  witness  whereof,  &c. 

(Add  acknowledgment) 

Order  confirming  sale  of  infants'  lands. (a) 

(Title  of  matter.) 
On  reading  and  filing  the  report  of  ,  special  guardian 

of  the  said  infants,  of  the  sale  of  the  lands  of  said  infants,  for 
the  sum  of  dollars,  and  the  terms  thereof  therein  men- 

to  such  estate  as  aforesaid ;  provided,  to  be  executed,  lie  shall  ilicii  make 

that  before  any  such  sum  shall   be  order  for  the  application  and  disposi- 

paid,  or  such  investment  made,  the  tion  of  the  proceeds  of  the  same,  and 

Chancellor  shall  be  satisfied  that  an  fur  the  investment  of  the  surplus  be- 

effectual  release  of  such  estate  or  right  longing  to  such  infant  so  as  lo  secure 

has  been   executed.     Mev.,  "Infants,"  it  to  the  infant  in  .'•uch  wiiy  and  man- 

i>6;  ru/e  183.     If  any  woman  enlitlcd  ner  as  may  seem  most  for  his  or  lier 

to  dower,  ttc,  in  tlie  real  estate  of  any  benefit    and    advantage.     Eev,    ''fa- 

infant  sold   under  the   provisions  of  fanis,"  'i  4.     In  the  order  approving 

the  statute  shall  be  a  married  woman,  the  sale  and  directing  a  conveyance 

she  may  execute  a  deed  of  release  of  to  be  executed,  may  be  embraced  the 

such  dower,  &c ,  without  her  liusband  directions  and  order  of  the  C'liancdlor 

joining   in    or    executing   the   deed.  for  the  applicalion  and  disposition  of 

Jd.,  ^  7.  tlic  proceeds  of  the  s;ik',  and  for  ilie 

(a)   If  the  sale  is  confiriiK  (1    liytiic  iiivestmmt    of    the    surplus    thereof. 

(Chancellor,  and  a  (•oiiveyiiiiec  directed  llule  ISti.   h'or  special  guMnlians' com- 


680  FORMS   OF   PLEADINGS. 

tioned,  as  made  and  agreed  to  by  and  between  the  said  guardian 
and  ,  under  and  by  virtue  of  an  order  of  this  court :   It 

is,  on  this,  &c.,  ordered,  that  the  said  sale  and  agreement  be  and 
the  same  are  hereby  confirmed,  according  to  the  terms  and  con- 
ditions in  the  said  report  mentioned. 

And  it  is  further  ordered,  that  the  said  guardian  execute  a 
deed  to  the  said  for  the  premises  in  the  said  report  set 

forth,  on  his  complying  with  the  terms  upon  which  the  deed  was 
to  be  delivered. 

{In  case  the  land  agreed  to  be  sold  be  subject  to  dower,  and  the 
person  entitled  thereto  has  agreed  to  join  in  the  sale,  and  release 
her  right  of  dower,  which  facts  should  be  set  forth  in  the  report  of 
sale,  and  her  consent  thereto  has  been  filed  in  the  offiee  of  the  clerk 
in  chancery,  and  in  case  the  terms  of  sale  were  agreed  to  with  the 
understanding  that  the  dower  was  to  be  released,  then  add  to  the 
above  order  the  following :    "And  it  appearing  that  ,  who 

was  entitled  to  an  estate  in  dower  in  said  lands,  has,  by  writing 
signed  by  her,  consented  to  join  in  said  sale  and  to  release  her 
said  dower  to  the  purchaser,  which  said  consent  has  been  filed  in 
the  office  of  the  clerk  of  this  court,  it  is  further  ordered,  that 
such  part  of  the  purchase-money  as  the  Chancellor  shall  deem 
reasonable  be  put  at  interest  on  good  real  security  as  aforesaid, 
in  the  name  of  the  Chancellor,  for  her  benefit,  and  that  the 
interest  only  of  such  part  be,  from  time  to  time,  as  it  may  be 
received,  paid  over  to  the  said  ,  {the  widow,)  during  her 

natural  life,  unless  she  shall  elect  to  receive  a  reasonable  sum  in 
gross,  to  be  approved  by  the  Chancellor,  in  lieu  of  dower,  in 
which  latter  case  she  must  apply  to  this  court,  by  petition,  for 
relief  before  such  investment.")  (  Where  the  land  is  subject  to  a 
tenancy  by  the  curtesy,  instead  of  dower,  the  last  clause  must  be 
varied  to  meet  the  case.) 

missions  on  sales  of  infants'  lands,  see  duly  confirmed)  convey  the  land  sold 

rule  187.     If  the  purchaser  die  after  to  the  heir  of  the   purchaser,  if  he 

the  sale  has  been  made,  and  the  con-  died   intestate,  or   to  his   devisee  or 

ditions  subscribed  and  agreed  to,  and  devisees,  who,  by  his  will,  would  be 

before  the  confirmation  of  the  sale  by  entit  ed  thereto,  upon  their  perform- 

the  court,  or  after  such  confirmation  ing    the    conditions   of   sale.      Bev., 

and  before  the  delivery  of  the  deed.  ''Sale  of  Land,"  §  21. 
the  guardian   may  (such    sale   behig 


SALE   OF    infants'    LANDS.  681 

And  it  is  further  ordered,  that  so  much  of  the  proceeds  of  the 
sale  as  shall  remain  after  payment  of  the  expenses  thereof,  and 
of  this  application,  and  after  deducting  the  provisions  as  afore- 
said for  said  widow,  be  put  at  interest  by  the  said  guardian, 
under  the  direction  of  the  Chancellor,  on  good  security  by  bond 
and  mortgage,  for  the  benefit  of  the  said  infants,  and  that  the 
said  guardian,  as  directed  by  the  statute  authorizing  such  sales, 
make  a  report,  as  soon  as  conveniently  may  be,  to  the  Chancellor 
in  writing,  and  upon  her  oath,  to  be  taken  before  a  master,  of 
the  investment  and  disposition  of  the  proceeds  of  said  sale. 

Report  by  special  guardian  of  investment  and 
disposition  of  proceeds  of  sale,  (a) 

{Title  of  matter.) 
In  pursuance  of  the  order  of  this  court,  made  on  the 
day  of  ,  eighteen  hundred  and  ,  I,  ,  the 

special  guardian  therein  mentioned  of  the  infants,  and 

,  do  report,  that  pursuant  to  the  directions  of  the  said 
order,  I  have  invested  the  sum  of  dollars,  at  interest,  on 

good  first  bond  and  mortgage,  on  a  farm  of  acres,  situate  in 

the  county  of  ,  for  the  benefit  of  the  said  infants,  which 

sum  was  the  whole  amount  of  the  proceeds  of  the  sale  of  said 
premises,  after  the  payment  of  the  expenses  thereof,  and  of  the 
application  to  this  court,  and  the  money  invested  for  the  widow 
as  hereinafter  mentioned  ;  and  that  ,  the  mother  of  said 

infants,  has  joined  in  the  sale  and  conveyance  of  the  said  prem- 
ises, and  has  released  her  dower  in  the  same ;  and  that  I  have 
also  invested,  on  good  real  security  as  aforesaid,  in  the  name  of 
the  Chancellor,  dollars,  part  of  the  purchase-money,  as 

an  equivalent  for  her  dower  in  the  said  premises,  to  the  end  that 
the  interest  thereof  may  be  received  by  her  during  her  natural 
life.  (6)  {Signature.) 

(a)  A  rei)ort  of  tin-  investment  or  {b)  The  proceeds  of  tlie  sale,  after 
■<iispositioii  of  the  proceeds  of  sale  deihictinj^  such  commissions  and  ex- 
must  be  made  to  the  Chancellor  by  j)eiises  as  shall  be  allowed  bv  the 
the  special  guardian,  on  oath  or  affir-  (Chancellor,  may,  l>y  order  of  the 
niation,  as  soon  as  conveniently  may  Chancellor,  be  paid  to  the  >:;eneral 
be,  and  filed  in  the  office  of  the  clerk  guardian  of  the  infant;  and  upon 
in  chancery.     Iter.,  "Infa-nln,"  'i  4.  such    pnymcnt  of  the   niu'iunl    nscer- 


682 


FORMS   OF    PLEADINGS. 


State  of  New  Jersey, 
county  of  , 

,  the  guardian  above  named,  being  duly  sworn,  on  her 
oath  says,  that  the  matters  and  things  stated  and  set  forth  in  the 
foregoing  report  are  true. 

(Signature.) 
Sworn,  &c. 


APPLICATION    FOR   SALE    OF    LANDS    LIMITED 
OVER,  &c.{a) 

Petition  for  an  order  to  sell  land  limited  over. 

In  Chancery  of  New  Jersey. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

The  petition  of  ,  of  the  township  of  ,  in  the 


county  of 


,  and  State  of  New  Jersey,  respectfully  shows. 


tained  by  the  Chancellor  to  be  due  to 
the  infant  in  the  hands  of  the  special 
guardian,  and  the  assignment  of  the 
securities  held  by  him,  the  special 
guardian  may  be  discharged  by  order 
of  the  Chancellor.  Rev.,  '^Infant,","  § 
9.  Before  any  order  directing  the 
special  guardian  to  pay  or  transfer 
the  proceeds  of  sale  to  the  general 
guardian  shall  be  made,  the  general 
guardian,shall  give  bond  with  sureties 
in  a  sum  suflBcient  to  secure  the 
amount  of  such  proceeds,  which  bond 
shall  be  approved  by  the  Orphans' 
Court  of  the  county  in  which  the 
general  guardian  was  appointed,  and 
iiled  with  the  surrogate  of  said 
county ;  and  a  certificate  from  such 
Orphans'  Court,  signed  by  at  least 
two  judges  thereof,  and  attested  by 
the  surrogate  under  his  official  seal, 
certifying  that  a  good  and  sufficient 
bond  has  been  filed  in  the  surrogate's 
office  sufficient  to  cover  the  amount 


(naming  it)  to  come  into  the  hands  of 
the  general  guardian,  shall  be  filed 
with  the  clerk  of  the  Court  of  Chan- 
cery.    Rev.,  "Infanti>,"  ^  10. 

The  special  guardian  is  liable  to 
account  under  the  order  of  the  Court 
of  Chancery  before  a  master;  and  the 
report  of  the  master  is  lial)le  to  ex- 
ceptions, as  in  other  cases  of  masters' 
reports  rec^uiring  confirmation.  Rev., 
"Infants,"  \  8. 

(a)  In  all  cases  when  any  future  or 
contingent  estate  in  lands,  or  the  pro- 
ceeds arising  from  the  sale  thereof, 
now  is  or  hereafter  may  be  wholly  or 
in  part  limited  over  to  infants,  or  per- 
sons not  in  e^se,  or  in  such  maimer 
that  the  vesting  or  duratiim  of  such 
estate  may  be  contingent,  and  the  in- 
terest of  the  owners  of  the  particular 
and  future  estates  in  such  lands  re- 
quire, and  would  be  promoted  by  a 
sale  thereof,  it  shall  be  lawful  for  the 
Chancellor,  upon   the  application  of 


SALE  OF   LANDS   LIMITED   OVER. 


683 


that  your  petitioner  has  a  vested  estate  for  life  in  all  that  certain 
farm  situate  in  the  said  township  of  ,  county  and  state 

aforesaid,  bounded  and  described  as  follows:  {describe  prem- 
ises.){a) 

That  the  said  farm  was  devised  to  your  petitioner  and  her 
sister,  ,  now  ,  for  life,  by  their  father,  ,  in 

and  by  his  last  will  and  testament,  (which  was  duly  admitted  to 
probate  on  or  about  the  day  of  ,  eighteen  hundred 

and  ,)  as  follows,  to  wit :  {insert  the  devise.) 

That  your  petitioner  intermarried  with,  &c.,  {stating  the  facts, 
so  as  to  show  the  estates  under  the  devise,  and  who  are  and  who 
may  be  entitled  thereto.) 

That  the  limitations  of  the  real  estate  devised  as  aforesaid 
are  as  follows : 


any  person  owning  a  vested  estate 
therein,  to  direct  said  lands  to  be  sold 
in  fee,  and  for  that  purpose  to  inquire 
into  the  situation  of  such  land,  and 
the  merits  of  such  application;  and 
if,  upon  fcuch  inquiry,  it  apjjears  that 
the  situation  and  prospective  value  of 
said  lands  are  such  that  it  would  be 
to  the  interest  of  any  person  who 
might  own  the  same  in  fee  to  sell  the 
same,  then  the  Chancellor  shall  direct 
such  sale.  Rev.,  "Sale  of  Lands,"  H 
41,  51.  A  sale  of  lands  made  by 
order  of  the  Chancellor  under  this 
statute,  only  conveys  the  estates  of 
persons  having  vested  or  contingent 
estates  in  such  lands,  and  who,  by  the 
statute,  are  required  to  have  notice 
of  the  proceedings.  The  rights  or 
liens  of  encumbrancers  who  are  not 
required  to  have  notice,  or  who  do 
not  have  notice  of  the  proceedings, 
are  not  affected  by  the  sale.  CooCs 
Ej^rs  v.  Illrjgins,  8  C  E.  Gr.  308. 

The  Chancellor  may  order  lands  to 
be  sold  free  and  clear  from  all  encum- 
brances and  order  encumbrances  ]>aid 


out  of  the  proceeds  of  sale.  Rev.  Sup., 
"Sale  of  Land,"  §  25.  And  taxes, 
water  rents  and  assessments  may  be 
ordered  paid  out  of  a  portion  of  the 
lands  sold  when  the  lands  consist  of 
different  parcels.  Id.,  §  27.  When 
a  widow  holds  a  life  estate  or  a  ves-ted 
estate  of  any  nature,  created  by  her 
husband  for  her  support,  and  such 
estate  is  unproductive,  the  life  esiate 
will  not  be  liable  for  taxes.  &c ,  but 
the  taxes,  &c.,  are  to  be  paid  out  of 
the  fund  arising  from  the  sale  of  the 
lands.     Id.,  ^  26. 

(a)  The  proceedings  in  cases  men- 
tioned in  section  41  shall  be  in  the 
Court  of  Chancery,  in  vacation  or 
term  time,  and  shall  be  commenced 
by  petition  of  some  person  owning  a 
vested  estate  in  said  premises,  which 
petition  shall  describe  the  lands  to  he 
sold,  and  the  limitations  of  the  same, 
and  shall  state  the  persons  who  may 
be  entitled  to  vested  or  prospective 
estates  therein.  Rer.,  ''Sale  o/  Lmid," 
I  42. 


-684  FOKMS   OF   PLEA.DINGS. 

The  persons  who  are  entitled  to  vested  rights  in  said  lands 

are  your  petitioner  and  her  sister,  ,  and  the  persons  who 

may  be   entitled  to  prospective  estates  therein  are  and 

and  such  other  children  as  may  be  born  of  the  bodies  of 

your  petitioner  and  her  sister,  ,  in  lawful  wedlock  begotten. 

And  your  petitioner  further  shows,  that  the  interests  of  the 
owners  of  the  particular  and  future  estates  in  the  said  lands 
require  and  would  be  promoted  by  a  sale  thereof;  and  that  the 
prospective  value  thereof  is  such,  that  it  would  be  to  the  interest 
of  any  person  who  might  own  the  same  in  fee  simple  to  sell  the 
same. 

Your  petitioner  therefore  prays,  that  your  Honor  will  inquire 
into  the  situation  of  said  lands  and  the  merits  of  this  application, 
and  order  a  sale  of  the  lands  in  fee. 

And  your  petitioner,  as  in  duty  bound,  will  ever  pray,  &c. 
{Signature  of  solicitor  and  counsel  with  petitioner.) 

{Add  verification.) 

Notice    to    owners   of   vested    or    prospective    es- 

tates.(a)     Take  notice,  that  the  subscriber,  one  of  the  children 
and  legatees  of  ,  late  of  the  township  of  ,  in  the 

(a)  Twenty  days'  notice  of  the  pre-  the  dwelling-house  of  such   person ; 

senting  the  petition  mentioned  in  this  and  in  case  such  person  be  an  infant 

section  shall  be  given  to  each  of  the  under  fourteen  years  of  age,  the  same 

persons  entitled  to  vested  or  prospec-  shall   also  be   served  on  his  or  lier 

tive  estates,  if  they  reside  within  this  father,   mother  or  guardian,   if  any 

state;  and  if  any  reside  without  this  reside  within  this  state;  and  in  case 

state,  such  notice  may  be  given    by  of  any  limitation   to   persons  not  in 

twenty  days'  service,  or  by  advertis-  being,   such   notice   shall    be   served 

ing   the  same  in   a  newspaper   pub-  upon  the  ancestor  of  such  person  in 

lished  in  the  county  where  the  lands  manner    aforesaid.      Rev.,    "Sale    of 

lie,  or  in  case  none  be  published  in  Land,"  §  42.     Whenever  it  shall  ap- 

:  said  county,  then  in  a  newsjiaper  of  pear  to  the  satisfaction  of  the  Chan- 

this   state  published  nearest  to  said  cellor  that  it  is  impossible,  after  due 

lands,    and    also    by    mailing    such  inquiry,  to  ascertain  the  names  of  the 

notice,  directed  to  such  person,  at  the  owners   of  any  jiarticular   or   future 

post-office   nearest   to   his   residence,  estate  in  lands  limited  in  the  manner 

provided    his   residence    be   known  ;  mentioned  in  this  act,  or  to  ascertain 

and  such  notices  may  be  served  either  whether  some  of  such  owners  are  liv- 

personally  or  by  leaving  the  same  at  ing  or  dead,  the  Chancellor  may  order 


SALE   OF   LANDS   LIMITED   OVER.  685 

county  of  ,  and  8tate  of  New  Jersey,  will    present  a 

petition  to  the  Chancellor  of  the  State  of  New  Jersey,  on  , 

the  day  of  next,  at  o'clock  in  the  forenoon  of 

said  day,  or  as  soon  thereafter  as  the  Chancellor  can  hear  the 
same,  at  the  state- house,  in  the  city  of  Trenton,  for  an  order 
that  the  following- described  land  and  premises,  situate,  &c., 
(describe  premises,)  may,  under  the  act  "  to  authorize  the  sale  of 
land  limited  over  to  infants,  or  in  contingency,  in  cases  where 
such  sale  would  be  beneficial,"  be  sold  in  fee,  and  the  proceeds 
of  sale  invested  according  to  law,  under  the  direction  of  the 
Court  of  Chancery.  Said  land  and  premises  were  devised  by 
the  said  ,  in  and  by  his  last  will  and  testament,  to  the 

subscriber  and  her  sister,  ,  now  ,  for  life,  and  after 

their  decease  to  their  lawful  issue,  in  fee  simple,  the  children  of 
each  to  take  their  parent's  share ;  provided,  that  if  one  should 
die  without  issue,  and  the  other  die  leaving  issue,  then  all  to  go 
to  such  issue ;  and  in  case  both  daughters  should  die  without 
issue,  then  the  same  was  devised  to  the  testator's  brother,  , 

and  his  sisters,  and  ,  and  the  survivor  or  survivors 

of  them. 
Dated,  &c. 

that  the  proceedings  uocler  this  act  for  six   weeks   succetsively,  at   least 

be  continued   as  if  all    such  owners  once  in  every  week,  and  also  in  any 

or   their   legal   representatives   were  other  manner  the  Chancellor  may  see 

known,    making   such   absent  or  un-  proper  to  direct;  and  upon  proof  of 

known  owner  or  owners  of  said  real  such  api)]ication,  and  of  the  perforru- 

estate  a  party  or  parties  thereto  by  ance  of  the   directions  contained  in 

such   description   as  the   Chancellor  said  order,  the  Chancellor  shall  make 

may  in  such  order  prescribe.     Such  such    order    against    said    unknown 

order  shall  briefly  relate  the  facts  set  owner    or    owners    as   if  they   were 

forth  in  said  petition,  and  call  u|!on  known  to  the  court,  and  as  may  be 

such  party  or  parties  to  appear  within  equitable  and  just ;   and  shall    have 

such    time   as   the    Chancellor   shall  power    to    make     like     orders     and 

direct,  not  less  than  two  months  from  decrees  in  the  premit-es,  as  fully  in 

the  date  of  such  order,  which  order  all   respects,  as  he  is  empowered  to 

shall  be  published  in   one  or   more  make  upon  proof  of  service  of  the 

public   newspapers    printed    in    this  notice  of  presenting  such  petition  as 

atate,  and  designated  in  such  order,  prescribed  in  this  act.     Id.,  I  52. 


686  FORMS   OP   PLEADINGS. 

Order  of  reference  on  petition  for  the  sale  of  lands 
limited  over.(a) 

In  the  matter  of  the  application  ^ 

on  behalf  of  for  sale  of  > 

lands  limited  over,  &c.  J 

Application  being  made  to  the  Chancellor,  by  ,  by  her 

petition,  duly  verified  and  filed,  wherein  it  is  alleged  she  has  a 
vested  estate  for  life  in  a  certain  farm,  situate  in  the  township 
of  ,  county  of  ,  and  State  of  New  Jersey,  particularly 

described  in  said  petition,  which  is  limited  over  to  infants,  and 
stating  the  persons  who  are  or  may  be  entitled  to  vested  or  pros- 
pective estates  therein,  and  alleging  that  the  interests  of  the 
owners  of  the  particular  and  future  estates  in  such  lands 
require  and  would  be  promoted  by  a  sale  thereof,  and  that  the 
prospective  value  of  said  lands  is  such  that  it  would  be  to  the 
interest  of  any  person  who  might  own  the  same  in  fee  to  sell  the 
same ;  and  it  appearing  that  due  notice  of  this  application  has 
been  given  to  the  persons  interested  in  said  lauds  for  the  time 
and  in  the  manner  required  by  law :  It  is,  on  this  day  of 

,  eighteen  hundred  and  ,  on  motion  of  ,  of 

counsel  with  the  petitioner,  ordered  by  the  Chancellor,  that  it  be 
referred  to  ,  one  of  the  special  masters  of  this  court,  to 

inquire  into  the  situation  of  said  lands  and  the  merits  of  said 
application,  and  in  what  manner  and  by  what  limitations  said 
lands  are  held ;  and  whether  the  interests  of  the  owners  of  the 
particular  and  future  estates  in  said  lands  require  and  would  be 
promoted  by  a  sale  thereof;  and  whether  the  situation  and  pros- 
pective value  of  said  lands  are  such  that  it  would  be  to  the  interest 
of  any  person  who  might  own  the  same  in  fee  to  sell  the  same, 
and  also  any  other  special  matter  which  the  said  master  may 

(a)  Upon  proof  of  notice,  the  Chan-  tion,  have  entered  their  appearance 
cellor  shall  refer  such  petition  to  a  .  with  the  clerk,  or  who  sliall,  ten  days 
master  to  inquire  into  the  merits  of  before  such  hearing,  give  notice  of 
the  application,  who  shall  proceed  to  such  appearance  to  the  petitioner,  or 
he;ir  the  applicant,  and  other  parties,  to  his  or  her  solicitor;  and  said  mas- 
touching  the  same,  giving  eight  days'  ter  shall  have  power  to  adjourn  such 
notice  of  the  time  and  place  of  such  hearing  from  time  to  time.  liev., 
hearing  to  all  parties  w^ho  shall,  on  or  '  Sale  of  Land,"  §  43. 
before  the  day  of  presenting  such  peti- 


SALE   OF   LANDS   LIMITED   OYER.  687 

deem  proper  or  shall  appear  for  the  benefit  of  the  present  and 
prospective  owners  of  said  land. 

Notice  of  application  for  the  appointment  of  guar- 
dian. 

rp  ( Title  of  matter.) 

Take  notice,  that  I  shall  apply  to  the  Chancellor  of  the  State 

of  New  Jersey,  at  the  state-house,  in  the  city  of  Trenton,  on 

,  the  day  of  next,  at  o'clock  in  the 

forenoon,  or  as  soon  thereafter  as  counsel  can  be  heard  thereon, 

to  assign  and  appoint  a  guardian  ad  litem  for  ,  an  infant 

respondent  in  the  above- stated  matter,  who  is  under  the  age  of 

fourteen  years,  {or  as  the  case  may  be.) 

Dated,  &c. 

[Signature  of  solicitor  of  petitioner.) 

Certificate  that  no  guardian  has  been  appointed 
by  Orphans'  Court  or  surrogate. 

{Title  of  matter.) 

State  of  New  Jersey,    \ 

county  of  ,    i 

I,  ,  surrogate  of  said  county,  hereby  certify  that  I  have 

just  examined  the  records  of  my  office  to  ascertain  whether  either 
the  Orphans'  Court  or  the  surrogate  of  said  county  has  appointed 
a  guardian  for  ,  an  infant  daughter  of  ,  of  said 

county,  or  for  ,  an  infant  son  of  ,  and  that  no 

guardian  has  been  appointed  by  said  court  or  surrogate  for  either 
of  said  infants.     In  witness,  &c. 

[l  s.]  {Surrogate.) 

Order  appointing  guardian  for  infant  respondents. 

( Title  of  matter.) 
On  motion  made  this  day  by  ,  of  counsel  with  peti- 

tioner, it   was   alleged    that  and  ,   two   of   the 

respondents  in  the  above-stated  matter,  are  infants  under  the 
age  of  fourteen  years,  {or  as  the  case  may  be,)  and  it  appearing 
that  notice  of  the  presentation  of  the  petition  in  the  above- stated 


688  FORMS   OF   PLEADINGS. 

matter  has  been  given  to  said  infants,  pursuant  to  the  statute  in 
such  case  made  and  provided,  and  that  they  have  failed  and 
neglected  to  apply  for  the  appointment  of  a  guardian  in  this 
proceeding,  and  it  appearing  that  due  and  legal  notice  of  this 
application  has  been  given  to  ,  the  father  of  the  said  , 

and  to  ,  the  mother  of  the  said  ,  (his  father  being 

dead,)  and  that  no  guardian  has  been  appointed  for  either  of 
said  infants  by  the  Orphans'  Court  or  the  surrogate  of  the 
county  of  ,  that  being  the  county  in  which  said  infants 

reside : 

It  is  thereupon,  on  this  day  of  ,  eighteen  hundred 

and  ,  ordered  by  the  Chancellor  that  ,  clerk  of  this 

court,  be  assigned  and  appointed,  and  he  is  hereby  assigned  and 
appointed  guardian  of  the  said  and  ,  by  whom  they 

may  appear  and  answer  the  said  petition. 

Infants'  appearance. 

(Title  of  matter.) 
Appearance  entered  for  and  ,  infant  respondents 

in  above  matter,  by 

{Guardian  ad  litem.) 

Notice  of  taking  testimony. 

(Title  of  matter.) 

Take  notice,  that  testimony  will  be  taken  in  the  above-stated 
matter,  before  ,  one  of  the  special  masters  of  the  Court  of 

Chancery,  on  ,  the  day  of  ,  instant,  at 

o'clock  in  the  noon,  at  his  office,  in  the  city  of  , 

under  an  order  of  reference  made  in  the  above- stated  matter, 
whereby  the  said  master  is  directed  to  inquire,  among  other 
things,  whether  the  interests  of  the  owners  of  the  particular  and 
future  estates  in  certain  lands,  described  in  the  petition  filed  in 
above-stated  matter,  require  and  would  be  promoted  by  a  sale 
thereof.  You  have  an  interest  in  the  lands  described  in  said 
petition,  and  may  attend  accordingly  at  the  time  and  place  afore- 
said, if  you  desire. 

Dated,  &c.  (Signature  of  solicitor  of  petitioner.) 

To 


SALE   OF   LANDS   LIMITED   OVER.  68& 

Master's  report.(a) 

{Title  of  matter.) 

1,  the  undersigned,  one  of  the  special  masters  of  this  court, 
respectfully  report  to  the  Chancellor,  that  in  pursuance  of  an 
order  of  reference  in  the  above  matter,  bearing  date  the 
day  of  ,  eighteen  hundred  and  ,  directing  me  to 

inquire  into  the  merits  of  the  said  application  of  ,  and 

into  the  situation  of  the  lands  therein  mentioned,  and  by  what 
limitation  said  lands  are  held,  and  whether  the  interests  of  the 
owners  of  the  particular  and  future  estates  in  said  lands  require 
and  would  be  promoted  by  a  sale  thereof,  and  whether  the  situa- 
tion and  prospective  value  of  said  lands  are  such  that  it  would 
be  to  the  interest  of  any  person  who  might  own  the  same  in  fee  to 
sell  the  same,  and  also  any  special  matter  which  the  said  master 
may  deem  proper  or  shall  appear  for  the  benefit  of  the  present 
and  prospective  owners  of  said  lands,  I  have  been  attended  by 
,  solicitor  and  of  counsel  with  the  petitioner,  no  one 
appearing  for  either  of  the  respondents,  although  they  were 
severally  served  with  due  and  legal  notice  to  appear  before  me, 
as  appears  by  due  proof  annexed  to  and  making  part  of  this  my 
report ;  and  that  I  have  taken  the  depositions  of  witnesses,  and 
have  considered  the  matters  referred  to  me. 

And  I  further  report,  that  the  said  lands  consist  of  a  farm 
containing  (insert  dimensions  and  present  and  prospective  condi- 
tion of  property.) 

And  I  further  report,  that  the  said  lands  are  held  in  the  man- 
ner and  by  the  limitations  following,  to  wit :  That,  &c.,  (state 
how  lands  are  held.) 

And  I  further  report,  that  the  said  last  will  and  testament  of 
said  ,  deceased,  contains  the  following  provisions  with 

reference  to  said    real  estate,  to  wit,  (insert  provisions,)  as  by 

(a)   The   master    shall    reduce    to  and  situation  of  said   property,  and 

writing  all  evidence  taken  before  him,  whether  the  interests  of  the  owners 

and  return  tlie  same  with  liis  report ;  thereof   require  and  would   be   pro- 

and  shall  report  in  what  manner  and  raoted  by  a  sale  of  the  same,  and  the 

by  what  limitations  such    lands  are  reasons  upon  whicli  such  opinion  is 

held,  and  the  nature,  circumstances  founded.     Hev.,  "Sale  of  Land,''  I  43. 

2t 


690  FORMS   OF   PLEADINGS. 

reference  to  the  said  will,  a  copy  whereof  was  produced  before 
me,  and  marked  Exhibit  ,  will  more  fully  appear. 

And  I  further  report,  that  the  said  departed  this  life 

on  the  day  of  ,  eighteen  hundred  and  , 

leaving  children,  and  ,  and  his  widow, 

,  surviving  him ;    that  on  the  day  of  , 

eighteen  hundred  and  ,  the  said  intermarried  with 

;  that  on  the  day  of  ,  eighteen  hundred  and 

,  ,  one  of  the  said  testator's  daughters,  intermarried 

with  ,  by  whom  she  has  one  child,  named  ;  that 

,  the  husband  of  ,  died  on  the  day  of 

eighteen  hundred  and  ;  that  on  the  day  of 

eighteen  hundred  and  ,  ,  the  other  daughter  of  said 

testator,  intermarried  with  ,  by  whom  she  has  one  child 

named  ;  that  ,  the  testator,  left  one  brother, 

and  two  sisters,  and  ;  that  died,  without 

issue,  the  day  of  ,  eighteen  hundred  and 

and  are  still  living ;  is  in  her  year 

is  in  her  year ;  is  in  her  year ;  and 

,  wife  of  ,  is  in  her  year. 

And  I  further  report,  that  the  owners  of  the  life  estate  in 
said  lands  are  both  females ;  the  petitioner,  ,  is  a  widow, 

with  one  child  ;  her  sister,  ,  is  the  wife  of  ;  that 

neither  of  them  is  acquainted  with  the  business  of  farming,  and 
that  they  do  not  intend  to  devote  themselves  to  that  business ; 
that  the  husband  of  died  insolvent,  and  that  she  has  no 

means  whatever  of  supporting  herself  and  her  infant  child, 
except  what  she  derives  from  the  farm  in  which  she  has  a  life 
estate ;  and  that  she  is  in  delicate  health,  and  the  income  of  the 
farm  aifords  her  only  a  slender  support ;  that  the  owners  of  the 
life  estate  will  be  compelled  to  have  the  farm  worked  by  tenants  ; 
and  that  it  is  quite  certain  that  if  worked  by  tenants  it  will 
depreciate  in  value  even  if  the  buildings  and  fences  are  kept  in 
repair ;  that  the  farm  is  now  in  a  good  state  of  cultivation  and 
will,  according  to  the  opinion  of  the  witnesses  produced  before 
me,  produce  more  if  sold  now  than  at  the  termination  of  the 
life  estate,  and  that  for  this  opinion  the  witnesses  so  produced 
give  reasons  which  are  satisfactory  to  me,  and  to  which  I  refer. 


SALE   OF   LANDS   LIMITED   OVER.  691 

And  I  further  report,  that  the  personal  property  which  was 
bequeathed  by  the  will  of  said  to  his  widow  and  children, 

to  enable  them  to  carry  on  the  farming  business,  was  sold  by  the 
executor  of  the  said  testator  to  pay  his  debts,  and  thereby  the 
views  which  the  testator  had  when  he  made  his  will  were 
defeated,  and  his  daughters  were  not  left  in  a  condition  to  carry 
on  the  farming,  if  they  had  been  competent  to  do  so. 

And  I  further  report,  that  in  my  opinion,  from  the  evidence 
adduced  before  me,  the  interests  of  the  owners  of  the  particular 
and  future  estates  in  said  lands  require  and  will  be  promoted  by 
a  sale  thereof,  and  that  the  situation  and  prospective  value  of 
said  lands  are  such  that  it  would  be  for  the  interest  of  any  person 
who  might  own  the  same  in  fee,  to  sell  the  same. 

And  I  further  report,  that  I  know  of  no  other  special  matter 
which  I  deem  necessary  or  proper  to  report  for  the  benefit  of  the 
present  and  prospective  owners  of  said  lands. 

Respectfully  submitted,  &c. 

{Signature  of  master.) 

Order  to  sell  lands  limited  over,  &c.(a) 

{Title  of  matter.) 

On  reading  and  filing  the  report  of  ,  one  of  the  special 

masters  of  this  court,  made  in  the  above-stated  matter,  bearing 
date  the  day  of  ,  eighteen  hundred  and  , 

whereby  it  satisfactorily  appears  to  the  Chancellor  that  the  said 
real  estate  is  held  and  limited  over  as  stated  and  set  forth  in  the 
petition,  and  that  the  interests  of  the  owners  of  the  particular 
and  future  estates  in  said  real  estate  require  and  would  be  pro- 
moted by  a  sale  thereof:  It  is  now,  on  this  day  of  , 
eighteen  hundred  and               ,  on  motion  of               ,  of  counsel 

(a)  Upon  such  report,  if  it  appear  this  court,  either  at  public  or  private 
to  tlie  satisfaction  of  the  Chancellor,  sale,  and  with  such  limitations  of 
that  said  lands  are  held  or  limited  price,  and  as  to  credit  for  purchase- 
over  as  aforesaid,  and  that  the  in-  money,  as  he  may  deem  proper  to 
terests  of  the  owners  require  and  direct,  whicli  sale  shall  be  reported 
would  be  promoted  by  sucli  sale,  the  to  the  Chancellor.  Jier ,  "Sale  of 
Chancellor  may  order  such  lands  to  Land,''  ^  44. 
be  sold  in  fee  bv  one  of  the  masters  of 


692  FORMS   OF   PLEADINGS. 

with  the  petitioner,  ordered  by  the  Chancellor,  that  ,  one 

of  the  special  masters  of  this  court,  do  sell  the  said  real  estate 
situate,  &c.,  bounded  and  described  as  follows,  {describe  land,) 
mentioned  and  described  in  the  petition  in  this  case,  [at  public 
vendue,]  or  (at  private  sale)  in  fee,  [giving  notice  of  the  time 
and  place  of  sale,  pursuant  to  the  statutes  in  such  case  made 
and  provided] ;  and  that  said  master  make  report  of  such  sale 
to  the  Chancellor,  for  approval  and  confirmation. 

Report  of  public  sale. 

( Title  of  matter.) 
In  pursuance  of  an  order  made  by  the  Chancellor  in  the 
above- stated  matter,  dated  the  day  of  ,  eighteen 

hundred  and  ,  by  which  it  was,  among  other  things^ 

ordered,  that  the  subscriber,  one  of  the  special  masters  of  this 
court,  sell  the  real  estate  mentioned  and  described  in  the  petition 
in  this  matter,  at  public  vendue,  in  fee,  giving  notice  of  the  time 
and  place  of  sale,  pursuant  to  the  statutes  in  such  case  made  and 
provided,  and  that  the  subscriber  make  report  of  such  sale  to  the 
Chancellor,  for  approval  and  confirmation :  I  do  hereby  report 
to  his  Honor  the  Chancellor,  that  I  did,  by  public  advertise- 
ments, signed  by  myself,  and  set  up  at  five  or  more  public  places 
in  the  county  of  ,  one  whereof  was  in  the  township  of 

,  where  said  real  estate  is  situate,  at  least  two  months 
next  before  the  time  appointed  for  selling  the  same,  and  also 
published  in  and  ,  two  of  the  newspapers  printed 

and  published  in  the   said   county  of  ,  in  which   the 

said  lands  are  situated,  one  whereof  is  a  newspaper  printed  and 
published  at  the  county  seat  of  said  county,  at  least  four  weeks 
successively,  once  a  week  next  preceding  the  time  so  appointed, 
give  public  notice  that  the  said  lands  and  real  estate  would  be 
exposed  to  sale  at  public  vendue  on  ,  the  day  of 

,  eighteen  hundred  and  ,  at  o'clock  in  the 

afternoon  of  said  day,  upon  the  premises,  {or  as  the  case  may 
be';)  at  which  time  and  place  so  appointed,  I  did  expose  the  said 
lands  and  real  estate  to  sale  at  public  vendue  to  the  highest  bid- 
der, and  then  and  there  bidding  therefor  the  sum  of 


SALE   OF   LANDS   LIMITED   OVER.  693 

dollars,  by  the  acre,  for  the  said  tract  of  land  containing 
acres  of  land,  and  no  one  bidding  so  much  or  more  for  the  same, 
the  said  tract  of  land  and  premises  were  struck  off  and  sold  to 
the  said  at  the  price  aforesaid,  amounting  for  the  whole 

tract  to  the  sum  of  dollars,  he  being  the  highest  bidder  for 

the  same.  [If  the  lands  are  sold  at  private  sale  the  report  should 
be  made  accordingly.) 

Respectfully  submitted,  &c. 

(Signature  of  master.) 

Order  confirming  sale. (a) 

{Title  of  matter.) 

Upon  reading  and  filing  a  report  made  in  the  above  matter, 
by  ,  one  of  the  special  masters  of  this  court,  dated  the 

day  of  ,  eighteen  hundred  and  ,  by  which  it 

appears  that  in  pursuance  of  an  order  made  by  the  Chancellor 
in  this  matter,  dated  the  day  of  ,  last  past,  wherein, 

among  other  things,  it  was  ordered,  that  the  said  ,  one  of 

the  special  masters  of  this  court,  do  sell  the  land  mentioned  and 
described  in  said  order,  [at  public  vendue,]  in  fee,  [giving  notice 
of  the  time  and  place  of  sale,]  pursuant  to  the  statute  in  such 
case  made  and  provided,  [the  said  master  having  given  public 
notice,  according  to  law  and  the  direction  of  said  order,  of  the 
time  and  place  when  and  where  the  said  lands  would  be  exposed 
to  sale,  at  the  time  and  place  so  appointed,  to  wit,  on  ,  the 

day  of  ,  eighteen  hundred  and  ,  at 

o'clock  in  the  afternoon,  upon  the  premises,  did  expose  the  said 

(a)  When  the  sale  is  approved  and  taxed  and  paid  out  of  the  proceeds  of 
confirmed  by  the  Chancellor,  the  such  sale,  the  master  to  be  allowed 
master  shall  execute  a  deed  thereof  such  percentage  on  the  purchase- 
to  the  purchaser,  which  deed,  when  money  as  the  Chancellor,  in  the  order 
given  pursuant  to  such  order,  shall  of  sale,  shall  direct,  not  to  exceed,  in 
convey  to  such  purchaser  all  the  any  case,  one-half  the  amount  allowed 
estate  in  said  lands,  held  or  limited  by  law  in  sherift''s  sales  of  lands ;  and 
■  over  as  described  in  the  petition,  or  all  costs  and  expenses  incurred  after 
held,  by  or  limited  over  to  any  of  the  such  sale  in  investing  money,  and  re- 
persons  named  or  designated  therein  investing  such  money,  and  touching 
as  present  or  prospective  owners  in  the  payment  of  the  interest,  sliall  be 
being  or  not  in  being.  Jlev.,  "Sale  of  paid  out  of  the  interest  accruing  on 
Land,"  'i  44.  The  costs  and  expenses  the  same,  and  not  out  of  the  principal 
of  the  proceedings  and  sale  shall  be  sum.     Id.,  ?  47. 


694  FORMS   OF   PLEADINGS. 

lands  to  sale  at  public  vendue  to  the  highest  bidder,  and 
bidding  therefor  the  sum  of  dollars,  by  the  acre,  and  he 

being  the  highest  bidder  for  the  same,  the  said  lands  were  then 
and  there  struck  off  and  sold  to  the  said  ,]  at  the  price 

aforesaid,  amounting,  for  the  whole  quantity  of  acres,  to 

the  sum  of  dollars ;  and  no  cause  being  shown  or  appear- 

ing against  confirming  the  said  report :  It  is,  on  this  day 

of  ,  eighteen  hundred  and  ,  on  motion  of  ,  of 

counsel  with  the  petitioner,  ordered,  that  the  said  master's  report, 
and  all  the  matters  and  things  therein  contained,  do  stand  ratified 
and  confirmed,  and  that  the  sale  made  by  said  master  of  said 
lands  be  and  the  same  is  hereby  approved  and  confirmed. 

And  it  is  further  ordered,  that  the  said  master  do  make,  exe- 
cute and  deliver  to  the  said  a  good  and  sufficient  convey- 
ance in  the  law  for  the  said  lands  purchased  by  him  as  aforesaid, 
upon  his  complying  with  the  conditions  of  said  sale ;  and  that 
such  conveyance,  when  made  in  pursuance  of  this  -  order,  shall 
convey  to  the  said  all  the  estate  in  said  lands  held  or 
limited  over  as  described  in  the  petition  in  this  matter,  or  held 
by  or  limited  over  to  any  of  the  persons  named  or  designated 
therein  as  present  or  prospective  owners  in  being  or  not  in  being ; 
and  that  such  conveyance  be  valid  and  effectual  forever,  and  do 
operate  as  an  effectual  bar,  both  at  law  and  in  equity,  against  all 
the  parties  in  this  matter,  and  all  persons  claiming  by,  from  or 
under  them,  or  any  of  them. 

Master's  report  as  to  how  money  may  be  in- 
vested. 

{Title  of  maUe7\) 

I,  ,  one  of  the  special  masters  of  the  Court  of  Chancery, 

do  respectfully  report  to  his  Honor  the  Chancellor,  that  the 
moneys  realized  by  me  from  the  sale  of  the  real  estate  described 
in  the  petition  in  this  matter,  can  be  safely  invested  in  accordance 
with  the  rules  of  said  court,  and  the  requirements  of  the  statute 
in  such  case  made  and  provided,  in  the  following  securities,  to 
wit :  {describe  securities.) 

Which  several  proposed  investments  I  respectfully  submit  to 
your  Honor  for  order  in  reference  thereto. 

Dated,  &c.  {Signature  of  master.) 


SALE   OF   LANDS   LIMITED   OVER. 


695 


one 


Order  for  investment.(a) 

{Title  of  matter.) 
It  appearing  to  the  Chancellor,  by  the  report  of 
of  the  special  masters  of  this  court,  bearing  date  on  the 
day  of  ,  eighteen  hundred  and  ,  that  dollars 

of  the  proceeds  of  sale  can  be  invested  upon  the  bond  of  , 

secured  by  a  first  mortgage  upon  the  land  and  premises  sold 
under  the  order  of  this  court  in  this  matter ;  and  that  said  land 
and  premises,  with  the  improvements  thereon,  are  worth  double 
the  amount  to  be  so  invested  ;  that  dollars  of  said  proceeds 

can  be  invested  upon  the  bond  of  ,  secured  by  a  first  mort- 

gage upon  acres  of  land  lying  in  the  township  of  , 

in  the  county  of  ,  in  this  state,  adjoining  lands  of 


(a)  The  moneys  arising  from  the 
sale  under  this  act  shall  be  paid  into 
the  Court  of  Chancery,  and  the  securi- 
ties and  mortgages  for  any  part  un- 
paid shall  be  deposited  with  the 
clerk  of  the  court ;  and  all  such 
moneys  shall  be  kept  at  interest,  on 
security  by  bond  and  mortgage  on 
real  estate  within  this  state,  worth, 
with  the  improvements  thereon, 
double  the  amount  invested,  or  may 
be  invested  in  the  public  securities  of 
the  United  States,  or  of  the  State  of 
New  Jersey,  and  the  interest  thereof, 
or  such  part  of  the  interest  as  the 
Chancellor  may  direct,  shall  be  paid 
to  the  person  or  persons  who  would 
for  the  time  being,  according  to  the 
limitations  of  said  land,  have  been 
entitled  to  the  particular  estate 
therein,  in  "proportion  to  their  respec- 
tive shares  therein  ;  and  such  securi- 
ties shall  be  taken  in  the  name  of  the 
Chancellor  of  New  Jersey,  and  the 
interest  shall  be  paid  on  the  same, 
half  yearly  or  otherwise,  directly  to 
the  persons  entitled  to  the  same,  un- 
less otherwise  directed  by  the  Chan- 
cellor, who  shall   from  time  to  time 


make  such  order  for  the  investing  of 
said  money  and  the  payment  of  the 
interest  thereon,  as  equity  and  justice 
may  require.  Rev.,  "Sale  of  Land" 
§?  45,  50.  In  any  case  where  justice 
and  equity  may  so  require,  the  Chan- 
cellor may  direct  part  of  said  interest 
money  only  to  be  paid  to  the  tenant 
of  any  particular  estate,  and  the  resi- 
due of  such  interest  to  be  accumulated 
for  the  tenant  in  remainder  in  fee ; 
and  when  by  the  limitation  of  such 
lands,  the  absolute  fee  of  the  same,  or 
any  share  therein,  would  have  vested 
in  any  person,  then  the  whole,  or  the 
proper  share  of  such  person,  of  the 
principal  of  the  purchase-money,  and 
the  accumulated  interest,  shall  be 
paid  by  order  of  the  Chancellor  to 
such  person.  Id.,  ?  46.  The  Chan- 
cellor has  no  power  to  order  mort- 
gages or  other  encumbrances  to  be 
l>aid  out  of  the  proceeds  of  such  sale. 
The  act  requires  that  the  whole  pro- 
ceeds shall  be  invested,  and  directs 
specifically  to  whom  tlie  interest  tliere- 
from  shall  be  paid.  Cool's  EzWs  v. 
liujgins,  8  C.  E.  Gr.  308 ;  but  see  S. 
a,  10  a  E.  Gr.  117. 


696  FORMS   OF    PLEADINGS. 

and  others ;  and  that  said  land  and  premises  are  worth  the  sum 
of  dollars  ;  that  the  sum  of  dollars  of  said  proceeds 

can  be  invested  upon  the  bond  of  ,  secured  by  a  first  mort- 

gage upon  a  tract  of  land  lying  in  the  township  of  ,  in 

the  said  county  of  ,  containing  acres  of  land,  being 

the  same  tract  of  land  conveyed  to  the  said  by  and 

,  his  wife,  by  deed  dated  the  day  of  ,  eighteen 

hundred  and  ,  and  recorded  in  County  Record  of 

Deeds,  Volume  ,  page  ;  and  that  said  land  and 

premises  are  worth  the  sum  of  dollars  ;  that  the  remainder 

of  said  proceeds,  after  deducting  the  costs  and  expenses  of  the 
proceedings  and  sale,  can  be  invested  upon  the  bond  of  , 

eecured  by  a  first  mortgage  upon  the  farm  now  owned  and 
occupied  by  said  ,  situate,  &c.,  containing  about 

acres  of  land ;  and  that  the  said  land  and  premises  are  worth 
[more  than]  double  the  sum  proposed  to  be  loaned  upon  them ; 
and  that  the  investment  is  a  proper  one  for  trust  money  :  It  is 
thereupon,  on  this,  &c.,  ordered  by  the  Chancellor,  that  the  said 
master  do  pay  out  of  the  proceeds  of  the  sale  the  costs  and 
expenses  of  the  proceedings  to  be  taxed,  and  the  costs  and 
expenses   of  the   sale,  including  dollars   for   recording 

mortgages,  and  retain,  as  his  percentage  on  the  purchase-money, 
the  sum  of  dollars,  and  that  the  said  master,  after  satisfy- 

ing himself  that  the  title  to  the  lands  hereafter  mentioned  is 
good  and  clear  of  encumbrance,  and  said  lands  are  worth,  with 
the  improvements  thereon,  at  least  double  the  sum  to  be  invested, 
and  the  investment  is  a  proper  one  for  trust  money,  shall  invest 
the  remainder  of  the  proceeds  of  sale  in  the  name  of  the  Chan- 
cellor of  the  State  of  New  Jersey,  as  follows,  to  wit:  {describe 
investment.) 

And  it  is  further  ordered,  that  the  said  master  shall  immedi- 
ately deposit  said  bonds,  and  also  said  mortgages,(a)  when 
recorded,  with  the  clerk  of  this  court;  and  that  out  of  the  first 
interest  moneys  received  on  said  bonds,  there  shall  be  paid  to 
the  solicitor  of  the  petitioner  a  counsel  fee  of  dollars. 

(a)  Forms  of  bonds  and  mortgages  be  furnislied  hj  tlie  clerk  of  the 
approved  of  bv  the   Chancellor  will       court. 


SALE   OF    LANDS   LIMITED    OVER.  697 

And  it  is  further  ordered,  that  the  said  master  shall  file  with 
the  clerk  of  this  court  a  statement  of  the  costs,  fees  and  expenses 
under  these  proceedings,  together  with  a  report  of  the  disposi- 
tion and  investment  of  said  proceeds  of  sale. 

Master's  account  and  report  of  investments. 

{Title  of  matter.) 
I,  ,  one  of  the  special  masters  of  this  court,  respectfully 

report,  that  I  have  disbursed  and  invested  the  proceeds  of  the 
sale  of  the  real  estate,  made  by  me  in  pursuance  of  the  order  of 
this  court,  as  follows  :  [describe  disbursements  and  investments.) 
Respectfully  submitted,  &c. 

{Signature  of  master.) 

Order  of  reference  as  to  allowance  to  owners  of 
particular  estates. 

{Title  of  matter.) 
The  real  estate  mentioned  and  described  in  the  petition  in  this 
matter  having  been  sold  under  the  order  of  this  court,  and  an 
order  having  been  made  for  the  investment  of  the  proceeds  of 
sale  :    It  is,  on  this,  &c.,  on  motion  of  ,  of  counsel  with 

petitioner,  ordered  by  the  Chancellor,  that  it  be  referred  to 
,  one  of  the  special  masters  of  this  court,  to  ascertain 
and  report  whether  the  said  real  estate  was  productive  or  not  to 
the  owners  of  the  particular  estate  at  the  time  of  and  before  the 
sale  thereof,  and  what  was  the  clear  yearly  income  of  the  same, 
above  repairs  and  taxes,  to  the  owners  of  the  particular  estate ; 
and  whether,  in  his  opinion,  the  whole  of  the  interest  of  the  pro- 
ceeds of  sale,  or  only  a  part  thereof,  should  be  paid  to  the  owners 
of  the  particular  estate,  and  if  part  only,  what  part ;  and  that  the 
said  master  return  with  his  report  to  this  court  the  evidence  taken 
by  him  under  this  order. 

Master's  report  on  foregoing  order. 

{Title  of  matter.) 
I,  ,  one  of  the  special  masters  of  this  court,  respectfully 

report  to  the  Chancellor,  in  pursuance  of  an  order  of  reference 
in  the  above  matter,  dated  the  day  of  last  past, 


698  FORMS   OF   PLEADINGS. 

directing  me,  as  such  master,  to  ascertain  and  report  whether  the 
said  real  estate  in  the  petition  mentioned  and  described  was  pro- 
ductive or  not  to  the  owners  of  the  particular  estate  at  the  time 
of  and  before  the  sale  thereof,  and  what  was  the  clear  yearly- 
income  of  the  same,  above  repairs  and  taxes,  to  the  owners  of  the 
particular  estate;  and  whether,  in  my  opinion,  the  whole  or  only  a 
part  of  the  interest  of  the  proceeds  of  the  sale  of  said  lands  should 
be  paid  to  the  owners  of  the  particular  estate,  and  if  part  only, 
what  part ;  that  I  have  been  attended  by  ,  solicitor  and 

of  counsel  with  the  petitioner,  and  have  taken  the  depositions 
of  witnesses,  and  have  considered  of  the  matters  referred  to  me. 
And  I  further  report,  that  the  real  estate  sold  was  productive 
at  and  before  the  sale  thereof,  and  that  the  clear  yearly  income 
of  the  same,  above  taxes  and  repairs,  for  the  year  beginning 

,  eighteen  hundred  and  ,  was  the  sum  of 

dollars ;  and  that,  in  my  opinion,  that  sum  could  have  been 
realized  out  of  the  premises,  from  year  to  year,  if  the  owner  of 
the  particular  estate  had  been  a  competent  farmer,  and  had  occu- 
pied and  carried  on  the  farming  operations  for  himself;  but 
that  in  this  case  one  of  the  owners  of  the  particular  estate  being 
a  widow,  and  the  other  married  to  a  gentleman  who  has  no 
acquaintance  with  the  business  of  farming,  and  no  disposition 
to  engage  in  it,  my  opinion  is  that  they  could  not  realize  a 
clear  yearly  income  out  of  the  premises  sold  of  more  than 
dollars,  and  probably  not  so  much  as  that,  as  the  income  would 
depend  entirely  upon  skill  and  management  in  the  farming 
operations. 

And  I  further  report,  that  by  the  last  will  and  testament  of 
the  said  ,  deceased,  ,  his  widow,  who  has,  since  his 

decease,  married  one  ,  is  entitled  to  an  annuity  of 

dollars  out  of  the  interest  of  the  proceeds  of  said  sale,  for  the 
term  of  years  from  and  after  her  marriage  with  said  , 

which  annuity  has  been  paid  to  her  up  to  ,  eighteen  hun- 

dred and 

And  I  further  report,  that,  in  my  opinion,  the  whole  of  the 
interest  of  the  proceeds  of  said  sale,  less  the  annuity  to  said 
,  should  be  paid  to  the  owners  of  the  particular  estate. 
Respectfully  submitted,  &c. 

{Signature  of  master.) 


SALE   OF   LANDS   LIMITED   OVER.  699 

Order  fixing    allowance    to  owners  of  particular 

estate. 

{Title  of  matter.) 

An  order  of  reference  having  been  made  in  this  matter,  on  the 
day  of  ,  eighteen  hundred  and  ,  to  , 

one  of  the  special  masters  of  this  court,  directing  him,  among 
other  things,  to  ascertain  and  report  whether  the  whole  of  the 
interest  of  the  proceeds  of  the  sale  of  the  real  estate  sold  under 
an  order  made  in  this  cause,  or  only  a  part  thereof,  should  be 
paid  to  the  owners  of  the  particular  estate,  and  the  said  master 
having  made  report,  dated  on  the  day  of  ,  instant ; 

and  now,  upon  reading  the  report  and  the  depositions,  and  the 
exhibit  accompanying  the  same,  and  other  papers  in  this  matter, 
it  appearing  that  the  whole  amount  of  proceeds  of  sale  invested 
on  bond  and  mortgage,  under  the  order  of  this  court,  is  the  sum 
of  dollars,  the  annual  interest  of  which  is  the  sum  of 

dollars ;  and  it  further  appearing  that  there  was  an  annual  pay- 
ment of  dollars  charged  upon  the  real  estate  sold,  in  favor 
of  ,  widow  of  ,  deceased,  for  years  from  and 
after  her  marriage,  provided  she  lived  so  long,  and  that  she 
intermarried  with  one  ,  on  the  day  of  , 
eighteen  hundred  and  ,  and  that  all  of  said  annual  pay- 
ments, falling  due  up  to  this  time,  have  been  made,  except  the 
one  falling  due  on  the  day  of  ,  eighteen  hundred 
and  ;  and  it  further  appearing  by  the  order  of  investment 
made  in  this  matter  on  the  day  of  ,  eighteen 
hundred  and  ,  that  it  was  ordered  that  a  counsel  fee  of 
dollars  be  paid  to  the  counsel  of  the  petitioner  out  of  the 
first  interest  moneys  received :  It  is,  on  this,  &c.,  on  motion  of 
,  of  counsel  with  the  petitioner,  ordered,  that  out  of  the 
interest  money  now  due,  the  counsel  of  the  petitioner  be  paid  the 
sum  of  dollars,  and  also  the  taxed  costs  on  the  order  of 
reference  made  on  the  day  of  last  past,  and  on  all 
the  proceedings  in  this  matter  since  that  order,  and  that  the  said 
be  paid  the  sum  of  dollars  out  of  the  interest  moneys 
now  due,  and  that  she  be  paid,  out  of  the  interest  money  accru- 
ing hereafter  on  said  proceeds  of  sale,  the  sum  of  dollars, 
on  the             day  of            of  each  and  every  year  hereafter,  up 


700  FORMS   OF   PLEADINGS. 

to  and  including  the  day  of  ,  eighteen  hundred  and 

,  provided  she  lives  so  long,  but  said  payments  shall 
cease  on  her  death ;  and  that  the  balance  of  the  interest  for  the 
year  ending  the  day  of  ,  eighteen  hundred  and 

,  shall  be  paid  to  the  said  and  ,  wife  of  > 

the  owners  of  the  particular  estate,  in  equal  portions;  and  that 
the  interest  accruing  on  the  investment  of  the  proceeds  of  sale 
after  the  day  of  ,  eighteen  hundred  and  , 

or  the  death  of  said  widow  of  the  testator,  if  that  event  shall 
happen  before  that  time,  shall  be  paid  annually,  as  said  interest 
is  received,  to  the  said  and  ,  in  equal  portions, 

during  their  joint  lives. 

Petition  of  non-resident  guardian  for  property  of 
his  ward  in  New  Jersey. (a) 

(Address.) 
The  petition  of             ,  guardian  of             ,  a  minor,  respect- 
fully shows,  that  he  is  a  resident  of  the  city  of  ,  in  the 
State  of             ,  and  was  appointed  guardian  of  ,  a  minor, 

(a)  In  case  any  guardian  and  his  cellor   shall   be   made   by   certificate 

ward   are   both   residents  of  another  according  to  the  act  of  congress,  in 

state  or  of  a  foreign  country,  and  such  case  the  guardian  and  ward  reside  in 

ward  is  entitled  to  funds  or  property  another  state,  or  by  attestation  under 

of  any  description  deposited   in   the  the  seal  of  the  court  wherein  or  officer 

Court  of  Chancery  or  under  the  con-  before   whom   the   proceedings   were 

trol  and  direction  of  the  Chancellor,  had,  if  their  residence  be  in  a  foreign 

arising  from  the  sale  of  the  properly  country,  of  the  appointment  of  such 

of  such  ward  in  this  state  or  other-  guardian,  and  that  he  has  given  ade- 

wise,  it  shall  be  lawful  for  the  Chan-  quate   security  as   such   guardian   in 

cellor   to   make  an   order   that  such  double  the  amount  in  value  of  such 

guardian  may  receive  and  remove  the  property,  over  and  above  the  value 

same  to  the  residence  of  himself  and  of  tlie  property  of  such  ward  in  the 

ward;   and  the  delivery,  transfer  or  place  of  his  residence;    and  in  case 

payment  of  such  funds  or  property  to  the  Chancellor  shall  not  be  satisfied 

such   guardian,  after   the  malting  of  with  the  sufficiency  of  such  security, 

such  order,  shall  be  a  legal  discharge  additional    security,    to    be   given    in 

and  acquittance  for  the  same.     Rev.  this  state,  may  be  required  in  such 

Slip,  "Guardians,"  §  I.     Before  any  form   as   the  Chancellor  may  direct, 

such   order   as  is  mentioned   in   the  Id.,  |  2. 

/first  section  of  this  act  shall  be  made,  On  proceedings  under  this  act  it  is 

proof  to  the  satisfaction  of  the  Chan-  not  incumbent  on  the  court  to  settle 


SALE   OF   LANDS   LIMITED   OVER.  701 

by  the  surrogate  of  county,  {or  oilier  proper  officer,)  in 

said  State  of  ,  on  the  day  of  ,  eighteen  hun- 

dred and  ;  the  said  is  years  of  age,  and  is 

also  a  resident  of  ;  the  said  minor  is  entitled  to  real  and 

personal  property  in  the  county  of  ,  in  the  State  of  New 

Jersey,  as  follows,  {here  describe  the  real  property^  valued  at 
dollars,  and  having  a  rental  value  of  dollars  per  year  ; 

also  dollars  on  deposit  in  this  court  derived  from  {stating 

the  source,  &c.,  or  otherwise  stating  nature  of  property ;)  your 
petitioner  has  given  adequate  security  as  such  guardian  in  double 
the  value  of  said  property  over  and  above  the  value  of  the  prop- 
erty of  said  minor,  in  the  place  of  his  residence,  which  security 
has  been  approved  by  the  surrogate  {or  other  proper  officer)  of 
said  county,  and  filed  in  his  oflfice. 

Your  petitioner  prays  that  he  may  receive  the  rents,  issues  and 
profits  of  said  real  estate,  collect  and  receive  the  said  moneys, 
&c.,  and  remove  the  same  to  the  place  of  residence  of  your 
petitioner  and  of  his  said  ward. 

Dated,  &c.  {Signature.) 

county,  ss. —  ,  being  duly  sworn,  on  his  oath  says, 

that  the  matters  and  things  above  stated  are  true,  to  the  best  of 
his  knowledge,  information  and  belief. 

{Jurat.)  {Signature.) 

the  question  whether  a  debt  is  due  or  p.  177.  The  Chancellor  may,  upon 
not  (property  which  it  is  sought  to  petition  of  a  guardian  of  a  minor  or 
remove),  except  so  far  as  may  be  lunatic  or  insane  or  feeble-minded 
necessary  to  satisfy  it  that  there  is  person,  order  and  direct  that  the 
property  to  be  removed,  and  what  it  guardian  remove  dilapidated  build- 
is  and  the  amount  of  it ;  that  is,  so  far  ings  and  contract  for  the  erection  of 
as  may  be  necessary  to  enable  the  new  buildings,  and  borrow  money, 
court  to  adjudicate  upon  the  matters  secured  by  bond  and  mortgage  on  the 
submitted  to  it  in  the  proceedings,  lands  of  the  infant,  for  the  erection 
and  which  are  mentioned  in  the  and  completion  of  said  new  buiklings; 
eighth  section  of  tlie  act.  Jifuhnke^i's  and  provision  is  made  to  secure  any 
C'we,  '.)  Stew.  Eq.  520.  estate  in  dower  in  said  lands ;  and 
Provision  is  also  made  for  the  de-  under  this  act  an  exchange  of  a  por- 
livery  of  the  proceeds  of  a  sale  of  tlie  tion  of  the  infant's  lands  may  be  made 
property  of  a  lunatic  or  idiot,  or  any  for  other  lands  adjoining  upon  con- 
property  belonging  to  him,  to  a  non-  sent  of  the  owner  of  the  adjoining 
resident  guardian.     Pamph.  L.,  1887,  land.    Ecv.  Sup.,  "Oiiardians,"  'H  2-9. 


702  FORMS    OF    PLEADINGS. 

Notice  of  application  on  foregoing  petition. 

To  ,  executor  of  the  will  of  ,  deceased  :    Take 

notice,  that  on  the  (date,)  at  ten  o'clock  a.  m.,  I  shall  apply  to 
the  Chancellor  of  the  State  of  New  Jersey,  at  the  state-house,  in 
the  city  of  Trenton,  for  an  order  authorizing  me  (here  state  sub- 
stance of  application.) 

Dated,  &c.  (Signature  of  guardian.) 

Order    for   removal  of  property  of  minor  out  of 

this  state. 

(Title  of  matter.) 

Application  having  been  made  to  this  court  by  ,  guardian 

of  ,  both  of  the  city  of  ,  in  the  State  of  ,  for 

the  delivery  of  certain  property  and  money  in  this  state  of  said 
ward  to  said  guardian,  in  his  petition  in  this  matter  described, 
and  it  appearing  to  the  satisfaction  of  the  court  that  the  said 
is  a  minor,  resident  in  the  State  of  ,  and  that  , 

his  said  guardian  appointed  by  the  (Surrogate's)  Court  of  the 
county  of  ,  State  of  ,  (or  as  the  case  may  be,)  [has 

given  adequate  security  as  such  guardian  in  double  the  amount 
in  value  of  the  property  mentioned  in  his  said  application,  over 
and  above  the  value  of  the  ward's  property  in  the  State  of 

,]  and  that  the  said  minor  is  entitled  to  real  property  in 
the  county  of  ,  in  this  state,  consisting  of  (here  insert 

description  of  real  property,)  having  an  annual  rental  value  of 

dollars,  and  also  dollars  on  deposit  in  this  court, 

derived,  &c.,  (or  otherwise  describe  the  property,)  and  due  notice 
of  this  application  having  been  given :  It  is,  on  this  (date,)  on 
motion,  &c.,  ordered  that  said  guardian  may  receive  the  rents, 
issues  and  profits  of  said  real  estate,  and  collect  and  receive  said 
moneys,  which  the  clerk  of  this  court  is  hereby  directed  to  pay, 
and  remove  the  same  to  the  place  of  residence  of  himself  and 
ward.  (In  case  satisfactory  security  has  not  been  given  at  the 
place  of  residence,  omit  the  above  clause  in  brackets  and  insert 
here,  "  upon   giving  bond  in  the  sum  of  dollars,  with 

sureties,  to  be  approved  by  ,  one  of  the  special  masters  of 

this  court,  conditioned  for  the  faithful  execution  of  his  office  as 
such  guardian." 


SALE   OF   LANDS. 


703 


APPLICATION    FOR    SALE    OF    LANDS  OF   A 
PERSON   PRESUMED   TO   BE   DEAD.(a) 

Petition  by  the  devisee  of  a  person  presumed  to 
be  dead,  for  the  sale  of  his  lands.(6) 

In  Chancery  of  New  Jersey. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

The  petition  of  ,  widow  of  ,  deceased, 

and  ,  children  of  said  ,  all  of  the  county  of  , 

State  of  New  Jersey,  respectfully  shows,  that  the  said  , 


(a)  Any  person  who  shall  remain 
beyond  sea,  or  absent  himself  or  her- 
self from  this  state,  or  conceal  himself 
or  herself  in  this  state,  for  seven  years 
successively,  shall  be  presumed  to  be 
dead,  in  any  case  wherein  his  or  her 
death  shall  come  in  question,  unless 
proof  be  made  that  he  or  she  were 
alive  within  that  time ;  but  an  estate 
recovered  in  any  such  case,  if  in  a 
subsequent  action  or  suit  the  person  ^ 
so  presumed  to  be  dead  shall  be 
proved  to  be  living,  shall  be  restored 
to  him  or  her  who  shall  have  been 
evicted ;  and  he  or  she  may  also  de- 
mand and  recover  the  rents  and 
profits  of  the  estate,  during  such 
time  as  he  or  she  shall  have  been 
deprived  thereof,  with  costs  of  suit. 
Rev.,  "Death,"  §  4. 

(6)  In  case  the  heirs  or  devisees  of 
any  person  who  is  or  may  be  pre- 
sumed to  be  dead,  pursuant  to  the 
provisions  of  the  foregoing  section, 
shall  desire  to  sell  any  land  or  real 
estate  to  which  said  person  would  be 
entitled,  if  living,  it  shall  be  lawful 
for  said  heirs  or  devisees  to  present  a 
petition  to  the  Court  of  Chancery  ; 
and  thereupon  the  said  court,  upon 
being  satisfied  of  the  truth  of  the  facts, 
that  it  will  be  just  and  equitable,  and 


ujiou  proper  security  being  given,  by 
bond,  to  the  State  of  New  Jersey,  for 
double  the  value  of  said  land  or  real 
estate,  that  the  proceeds  of  the  sale 
shall  be  paid  on  demand,  with  in- 
terest, to  the  said  person  presumed  to 
be  dead,  or  to  his  or  her  lawful  issue, 
in  case  he,  she  or  they  shall  appear 
and  claim  the  same,  to  order  the  said 
land  or  real  estate  to  be  sold,  as  the 
court  may  deem  advisable ;  and  that 
the  said  person  so  presumed  to  be 
dead,  and  his  or  her  lawful  issue,  if  he, 
she  or  they  shall  "prove  to  be  living, 
shall  be  forever  thereafter  barred  from 
any  claim  or  title  to  said  land  or  real 
estate,  and  entitled  only  to  the  pro- 
ceeds thereof;  and  in  such  case  the 
purchaser  shall  hold  and  be  seized  of 
as  good  and  perfect  estate  in  the  said 
land  or  real  estate  as  if  the  said  person 
presumed  to  be  dead  had  conveyed 
the  same.     Id.,  ^  5. 

That  the  proceeds  of  such  sale, 
after  the  payment  therefrom  of  the 
costs  and  expenses  of  the  proceedings, 
as  allowed  by  tlie  (Chancellor,  siiall  be 
paid  into  the  Court  of  Chancery,  and 
shall  be  distributed,  upon  the  order 
of  the  Chancellor,  to  such  person  or 
persons  as  he  may  adjudge  to  be  enti- 
tled thereto  us  heirs  or  devisees  of  the 


704  FORMS   OF   PLEADINGS. 

deceased,  on  (date,)  eighteen  hundred  and  ,  left  his  residence 

at  ,  in  said  county  and  state,  with  the  intention  of  going  to 

the  west  on  account  of  his  ill- health ;  that  prior  to  his  leaving 
his  home,  he  had  had  several  severe  attacks  of  ;  that  it 

was  the  opinion  then  of  his  physician  that  he  would  not  survive 
another  attack  ;  that  shortly  after  he  left  his  home,  ,  one 

of  the  above-named  petitioners,  received  from  him  a  letter,  dated 
,  in  which  he  writes,  &c. ;  that  since  then  your  petitioners 
have  not,  nor  has  either  of  them,  been  able  to  hear  anything  from 
him,  directly  or  indirectly,  although  inquiry  concerning  him  has 
been  from  time  to  time  made. 

And  your  petitioners  further  show,  that  prior  to  the  said 
leaving  his  home  as  aforesaid,  he  made,  in  writing,  and  duly 
executed  his  last  will  and  testament,  of  which  the  following  is  a 
true  copy  :  {recite  devises  in  will.) 

And  your  petitioners  further  show,  that  satisfactory  proof  of 
the  presumed  death  of  said  having  been  submitted  to  the 

surrogate  of  the  said  county  of  ,  the  said  will  was  duly 

admitted  to  probate  on  the  day  of  ,  eighteen  hundred 

and  ;  and  the  executors  in  said  will  named  having  filed 

with  the  surrogate  of  said  ,    county  their  written  renuncia- 

tion to  act  as  such  executors,  letters  of  administration,  with  the 

decedent,  upon  such  person  or  persons  to  the  benefit  thereof.  Tlie  Chun- 
entering  into  bond  to  the  State  of  New  cellor  may  order  any  estate  of  dower 
Jersey,  with  surety  or  sureties  to  be  or  by  the  curtesy  in  such  hinds  and 
approved  by  tlie  Chancellor,  in  double  real  estate  to  be  sold,  and  said  lands 
the  amount  of  the  share  or  shares  re-  and  real  estate  discharged  therefrom, 
ceived  by  such  person  or  persons,  and  that  a  certain  sum  of  money  be 
conditioned  for  the  payment,  on  de-  paid  in  lieu  thereof  to  the  person  or 
mand,  of  the  amount  of  such  share  or  persons  entitled  to  such  estate ;  or  a 
shares  to  the  person  presumed  to  be  certain  share  of  the  proceeds  of  the 
dead,  if  he  or  she  prove  to  be  living,  sale  of  said  lands  and  real  estate  be 
or  to  his  or  her  heirs  or  devisees,  if  invested  for  the  benefit  of  the  person 
he  or  she  shall  prove  to  have  lived  to  or  persons  entitled  to  such  estate,  in 
be  seized  of  or  entitled  to  said  lands  the  same  manner  as  now  provided  for 
and  real  estate,  which  said  bond  shall  in  the  partition  in  chancery  of  lands 
be  filed  with  the  clerk  of  the  Court  of  held  in  common.  Pamph.  L.,  1889, 
Chancery,  and  be  assigned  for  prose-  ch.XVIL 

cution  by  the  order  of  the  Chancellor,  As   to   presumption   of   death   and 

in  the  name  of  the  State  of  New  Jer-  proof  thereof,  see  Hoyt  v.  Newbold,  16- 

sey,  to  the  person  or  persons  entitled  Vr.  219. 


SALE   OF   LANDS.  705 

■will  annexed,  were  granted,  on  the  day  of  ,  eighteen 

hundred  and  ,  to  ,  one  of  the  above-mentioned 

petitioners. 

That  on  the  said  last-mentioned  date  the  said  was  also 

appointed  by  the  Orphans'  Court  of  said  county  guardian  of 
and  ,  aged  and  years,  respectively 

minor  children  of  the  said 

And  your  petitioners  show,  that  the  said  died  possessed 

of  the  following- described  real  estate  in  the  township  of 
aforesaid :  [describe  premises.) 

That  the  whole  of  said  real  estate,  with  the  buildings  thereon, 
is  worth  about  dollars;  that  the  dwelling-house  thereon, 

which  has  been  and  still  is  occupied  by  the  widow  and  family 
of  said  ,  is  in  a  dilapidated  condition  and  greatly  needs 

repairs ;  that  the  said  left  no  personal  estate  except  his 

household  furniture,  worth  about  dollars,  which  is  still 

used  by  his  family ;  and  that  there  is  no  income  whatever  from 
said  estate. 

And  your  petitioners  show,  that  it  is  necessary  that  a  portion 
of  said  real  estate  be  sold,  as  well  to  provide  means  by  which 
necessary  repairs  may  be  made,  as  for  the  support  and  education 
of  said  minor  children,  who  have  no  income  whatever,  or  interest 
in  any  other  property,  real  or  personal,  excepting  the  interest 
.they  have  in  their  said  father's  estate. 

Your  petitioners  therefore  pray,  that  the  following-described 
portion  of  said  real  estate  whereof  said  died  seized,  viz., 

all  those  tracts  or  parcels  of  land  and  premises  situate,  lying  and 
being  in  said  township  of  ,  (describe  premises,)  valued  at 

dollars,  may  be  by  this  honorable  court  ordered  to  be 
sold,  in  such  manner  as  this  court  may  deem  advisable,  upon 
your  petitioners  giving  such  security,  by  bond,  to  the  State  of 
New  Jersey,  as  the  law  requires. 

And  your  petitioners  will  ever  pray. 

{Add  verification  in  usual  form. 

2v 


706  FORMS  OF   PLEADINGS. 

Order  of  reference  on  foregoing  petition. 

{Title  of  matter.) 
Upon  reading  the  petition  of  and  ,  setting  forth, 

among  other  things,  the  presumed  death  of  ,  the  execu- 

tion of  the  last  will  and  testament  of  said  ,  the  admission 

thereof  to  probate  by  the  surrogate  of  the  county  of  ,  the 

renunciation  of  the  execution  thereof  by  the  executors  therein 
named,  and  the  appointment  of  an  administrator  with  the  will 
annexed,  and  praying  for  a  sale  of  a  part  of  the  lands  whereof 
said  was  seized  :   It  is  thereupon,  on  this  day  of 

,  eighteen  hundred  and  ,  on  motion  of  ,  of 

counsel  with  the  petitioners,  ordered  by  the  Chancellor,  that  it 
be  referred  to  ,  one  of  the  special  masters  of  this  court, 

to  ascertain,  by  due  proof,  and  report  to  this  court  as  to  the 
truth  of  the  allegations  of  the  said  petition,  and  who  are  the 
heirs  or  devisees  of  the  said  ,  and  whether  it  is  just  and 

equitable,  having  due  regard  to  the  interests  of  the  infant  heirs 
or  devisees,  if  any,  that  the  part  of  the  said  lands  in  the  said 
petition  particularly  described  should  be  sold,  and  if  so,  the  value 
of  the  said  part  of  said  lands,  and  in  what  amount  the  said  peti- 
tioners should  be  required  to  give  bond  according  to  law,  and 
what  sureties  are  offered  by  them,  and  whether  such  sureties  are 
sufficient  for  the  purpose. 

Master's  report  pursuant  to  foregoing  order. 

(  Title  of  matter.) 
In  pursuance  of  an  order  in  the  above- stated  matter,  made  by 
the  Chancellor,  bearing  date  the  day  of  ,  eighteen 

hundred  and  ,  whereby  it  was  referred  to  the  subscriber, 

one  of  the  special  masters  of  said  court,  to  ascertain,  by  due 
proof,  and  report  to  said  court  as  to  the  truth  or  falsity  of  the 
allegations  of  the  said  petition,  and  who  are  the  heirs  or  devisees 
of  the  said  ,  and  whether  it  is  just  and  equitable,  having 

due  regard  to  the  interests  of  the  infant  heirs  or  devisees,  if  any, 
that  the  part  of  the  said  lands  in  the  said  petition  particularly 
described  should  be  sold,  &c.,  I,  ,  hereb}'^  report  that  I 

have  attended  to  the  matters  referred  to  me  by  the  said  order. 


SALE   OF   LANDS.  707 

and  have  taken  the  examination  of  witnesses  and  other  evidence 
in  the  matter,  and  thereupon  am  of  the  opinion  that  the  truth 
of  the  allegations  of  the  said  petition  has  been  fully  established ; 
that  the  said  has  been  absent  from  this  state  for  seven 

years,  successively,  prior  to  the  exhibiting  of  said  petition,  and 
that  his  death  is  reasonably  presumable ;  that  is  his  widow, 

and  and  are  his  only  heirs  or  devisees ;  that  under 

the  circumstances  of  the  case,  it  is  just  and  equitable,  having  due 
regard  to  the  interests  of  the  infant  heirs  or  devisees,  that  the 
portion  of  land  described  in  the  petition,  and  sought  to  be  sold, 
should  be  sold,  and  that  the  interests  of  the  infants  would  be 
substantially  promoted  thereby ;  that  said  lands  are  valued  at 
dollars ;  that  the  said  petitioners  should  be  required  to 
give  bond  in  the  sum  of  dollars. 

And  I  further  report  that  the  following-named  persons  have 
been  proposed  to  me  as  sureties,  viz.,  and  ,  who 

both  reside  in  the  county  of  ,  and  are  each  of  them,  in 

property  and  estate,  sufficient  sureties  under  the  law  and  the 
rule  of  this  court. 

Respectfully  submitted,  &c. 

{Add  depositions  of  witnesses.) 

Order  to  sell  lands  of  person  presumed  to  be  dead. 

( Title  of  matter.) 
This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  petitioners,  and  upon  reading  a  report  on  file  therein, 
made  by  ,  one  of  the  special  masters  of  this  court,  bearing 

date  the  day  of  ,  from  which  it  appears  satisfactorily 

to  the  Chancellor  that  ,  the  testator  in  the  petition  named, 

has  absented  himself  from  this  state  for  seven  years  last  past 
successively ;  and  that  there  is  no  evidence  of  his  being  alive 
within  that  time ;  and  that  is  his  widow,  and  and 

are  his  children  ;  and  that  the  said  and  are 

infants  under  the  age  of  twenty-one  years;  and  that  it  is  just 
and  equitable,  having  due  regard  to  the  interests  of  said  infants, 
that  the  portion  of  land  described  in  the  said  petition  in  that 
behalf  should  be  sold ;  and  that  the  value  of  said  land  is 


708  FORMS   OF   PLEADINGS. 

dollars.  And  it  also  appearing  to  the  Chancellor  by  the  exhi- 
bition of  the  letters  of  administration  issued  by  the  surrogate  of 
the  county  of  ,  with  the  will  annexed,  to  ,  on  the 

day  of  ,  eighteen  hundred  and  ,  that  the 

executors  named  in  the  will  of  the  said  have  renounced 

the  execution  thereof ;  and  that  the  said  surrogate  has  appointed 
the  said  ,  administrator  with  the  will  annexed  of  the  estate 

of  the  said  .     And  it  also  appearing  in  and  by  the  said 

will  that  the  testator  disposed  of  his  property  in  favor  of  his  said 
widow  and  children,  as  particularly  provided  in  said  will,  and 
therein  authorized  his  executors  to  sell  and  convey  his  real  estate  : 
It  is  thereupon,  on  this  day  of  ,  eighteen  hundred 

and        *      ,  ordered  by  the  Chancellor,  that  the  said  be 

presumed  to  be  dead,  pursuant  to  the  statute  in  such  case  made 
and  provided ;  and  that  it  is  just  and  equitable  that  the  land 
particularly  set  forth  and  described  in  the  petition  in  this  matter, 
to  wit,  {describe  premises,)  be  sold  ;  and  that  for  the  purposes  of 
such  sale,  and  pursuant  to  the  provisions  of  the  statute  in  such 
case  made  and  provided,  the  said  do  give  bond  to  the 

State  of  New  Jersey  in  the  sum  of  dollars,  with 

and  as  his  sureties,  conditioned  for  the  payment,  on  demand, 

of  the  proceeds  of  the  sale  of  the  lands  hereinbefore  set  forth, 
with  interest,  to  the  said  ,  or  to  his  lawful  issue,  in  case 

he  or  they  shall  appear  and  claim  the  same ;  which  bond  shall 
be  approved  by  the  special  master  aforesaid,  and  shall  then  be 
filed  with  the  clerk  of  this  court. 

And  it  is  further  ordered,  that  upon  filing  the  said  bond  the 
said  ,  administrator  as  aforesaid,  do  sell  the  lands  herein- 

before described,  at  public  vendue,  to  the  highest  bidder,  in  such 
parcels  as  may  seem  to  him  most  for  the  interest  of  the  parties  ; 
and  that  he  do  give  public  notice  of  the  time  and  place  of  such 
sale,  and  in  all  respects  conduct  the  same  as  required  by  law ; 
and  that  before  any  deeds  are  executed  conveying  said  lands 
pursuant  to  the  terms  of  said  sale,  the  sale  and  the  terms  thereof 
shall  be  reported  to  the  Chancellor  by  the  said  administrator^ 
under  his'  oath,  to  the  end  that  the  Chancellor  may  confirm  or 
disallow  the  same ;  and  that  he  may  make  such  order  as  he  shall 
deem  fit,  touching  the  disposition  of  the  proceeds. 


SALE   OF   LANDS.  709 

Bond  of  administrator  to  secure  proceeds  of  sale 
of  land  of  a  person  presumed  to  be  dead.  Know  all 
men  by  these  presents,  that  we,  and  and  ,  all 

of  the  township  of  ,  county  of  ,  and  State  of  New 

Jersey,  are  held  and  firmly  bound  unto  the  State  of  New  Jersey 
in  the  sum  of  dollars,  lawful  money  of  the  United  States 

of  America,  to  be  paid  to  the  said  the  State  of  New  Jersey,  for 
which  payment  well  and  truly  to  be  made,  we  bind  ourselves, 
our  and  each  of  our  heirs,  executors  and  administrators,  firmly 
by  these  presents.     Sealed  with  our  seals  and  dated  the 
day  of  ,  eighteen  hundred  and 

Whereas,  by  a  certain  order  of  the  Court  of  Chancery  of  the 
State  of  New  Jersey,  made  on  the  day  of  ,  eighteen 

hundred  and  ,  the  above-bounden  was  authorized 

and  directed,  as  administrator  with  the  will  annexed  of  the 
estate  of  ,   to  sell  certain  land  and  premises  of  the  said 

,  presumed  to  be  dead,  said  land  and  premises  being  par- 
ticularly described  in  said  order :    Now,  therefore,  the  condition 
of  the  above  obligation  is  such  that  if  the  above-bounden 
shall  pay,  on  demand,  the  amount  of  the  proceeds  of  the  sale  of 
said  lands,  with  interest,  to  the  said  ,  or  her  lawful  issue, 

in  case  he  or  they  shall  hereafter  at  any  time  appear  and  claim 
the  same,  then  the  above  obligation  to  be  void,  otherwise  to  be 
and  remain  in  full  force  and  virtue. 

Administrator's  report  of  sale. 

{Title  of  matter.) 
In  pursuance  of  a  decree  made  by  the  Chancellor  in  the  above 
matter,  bearing  date  on  the  day  of  ,  eighteen  hundred 

and  ,  by  which  it  was,  among  other  things,  ordered,  that 

all  and  singular  the  premises  in  the  petition  mentioned  and 
described,  with  the  appurtenances,  be  sold  at  public  vendue,  to 
the  highest  bidder,  by  the  subscriber,  administrator,  with  the 
will  annexed,  of  ,  deceased,  in  such  parcels  as  might  seem 

to  him  most  for  the  interest  of  the  parties ;  and  that  I  should 
give  public  notice  of  the  time  and  place  of  such  sale,  and  in  all 
respects  conduct  the  same  as  required  by  law,  and  that  before 
any  deeds  were  executed,  conveying  said  land  pursuant  to  the 


710  FORMS   OF   PLEADINGS. 

terms  of  said  sale,  the  said  sale  and  the  terms  thereof  should  be 
reported  to  the  Chancellor  my  me^  under  my  oath :  I  hereby 
report  to  his  Honor  the  Chancellor,  that  I  did,  by  public  adver- 
tisements, signed  by  myself,  and  set  up  at  five  or  more  public 
places  in  the  county  of  ,  one  whereof  was  in  the  town- 

ship of  ,  where  said  real  estate  is  situate,  at  least 

next  before  the  time  appointed  for  selling  the  same,  and  also 
published  in  and  ,  two  newspapers  printed  and 

published  in  the  county  where  said  lands  are  situate,  and  at  the 
county  seat  of  said  county,  at  least  four  weeks  successively,  once 
a  week,  next  preceding  the  time  so  appointed,  give  public  notice 
that  the  said  lands  and  real  estate  would  be  exposed  for  sale  at 
public  vendue  on  the  day  of  ,  eighteen  hundred 

and  ,  at  the  hour  of  in  the  afternoon,  upon  the 

premises,  at  which  time  and  place  so  appointed,  I  did  expose 
the  said  lands  and  real  estate  to  sale  at  public  auction,  to  the 
highest  bidder,  and  then  and  there  bidding  the  sum  of 

dollars  for  the  tract  described  as  follows,  {describe  lands,) 
and  no  one  bidding  so  much  for  the  same,  the  said  tract  of  land 
and  premises  was  struck  ofiF  and  sold  to  the  said  for  the 

said  sum  of  dollars,  he  being  the  highest  bidder  therefor. 

And  I  further  report,  that  the  terms  of  said  sale  were  cash 
upon  the  delivery  of  the  deed  for  the  same,  which  was  to  be 
without  unnecessary  delay. 

Respectfully  submitted,  &c. 

(All    jijj     '1  \  (Signature  of  administrator.) 

Order  confirming  sale. 

{Title  of  matter.) 
Upon  reading  and  filing  a  report  made  in  the  above  matter 
by  ,  administrator  with  the  will  annexed  of  ,  deceased, 

bearing  date  the  day  of  last  past,  by  which  it 

appears  that  in  pursuance  of  an  order  made  by  the  Chancellor  in 
this  matter,  and  dated  the  day  of  last  past,  wherein, 

among  other  things,  it  was  ordered,  that  certain  lands  and 
premises  in  the  said  order  particularly  described,  should  be  sold 
at  public  vendue,  to  the  highest  bidder,  by  the  said  , 

administrator  as  aforesaid,  the  said  administrator  having  given 


SALE   OF   LANDS.  711 

public  notice,  according  to  law  and  the  direction  of  said  order, 
of  the  time  and  place  when  and  where  the  said  lands  and 
premises  would  be  exposed  to  sale,  did,  at  the  time  and  place  so 
appointed,  to  wit,  on  ,  the  day  of  ,  eighteen 

hundred  and  ,  at  o'clock  in  the  afternoon,  upon  the 

premises,  expose  the  said  land  and  premises  to  sale  at  public 
vendue  to  the  highest  bidder,  and  then  and  there  bidding 

for  the  first  tract  mentioned  and  set  forth  in  the  said  report,  the 
sum  of  dollars,  and  being  the  highest  bidder  for  the  same, 

the  said  premises  were  then  and  there  struck  off  and  sold  to  him 
at  the  price  aforesaid,  and  it  appearing  by  affidavit  that  said 
lands  were  sold  for  the  highest  and  best  price  the  same  could 
then  bring  in  cash,  and  no  cause  being  shown  or  appearing 
against  confirming  the  said  report :    It  is,  on  this  day  of 

,  eighteen  hundred  and  ,  on  motion  of  ,  of 

counsel  with  the  petitioners,  ordered,  that  the  said  report,  and 
the  matters  and  things  therein  contained,  do  stand  ratified  and 
confirmed,  and  that  the  said  administrator  do  make,  execute  and 
deliver  to  the  said  good  and  sufficient  conveyance  in  the 

law  for  the  said  tract  of  land  and  premises  purchased  by  him  as 
aforesaid,  upon  his  complying  with  the  conditions  of  said  sale. 

Petition  by  administrator  for    payment  of   dece- 
dent's debts,  &c. 

(Address.) 

The  petition  of  ,  administrator  with  the  will  annexed 

of  ,  deceased,  of  the  township  of  ,  county  of  , 

and  State  of  New  Jersey,  respectfully  shows,  that  by  an  order 
made  by  your  Honor  in  the  above- stated  matter,  on  the 
day  of  ,  eighteeu  hundred  and  ,  your  petitioner  was 

ordered  to  make  sale  of  certain  lands  and  premises  of  said 
,  deceased,  in  said  order  particularly  described,  and  to 
report  such  sale,  and  the  terms  thereof,  to  the  end  that  the  same 
might  be  confirmed  or  disallowed,  and  that  your  Honor  might 
make  such  order  as  he  should  deem  fit  touching  the  disposition 
of  the  proceeds. 

And  your  petitioner  further  shows,  that  your  petitioner  duly 
sold  the  said  tracts  of  land  and  premises,  realizing  from  the  sale 


712  FORMS   OF   PLEADINGS. 

thereof  the  sum  of  dollars,  and  did  report  the  said  sales 

as  directed  by  the  said  order,  which  sales  were  confirmed  by 
your  Honor  on  the  day  of  ,  eighteen  hundred 

and 

And  your  petitioner  further  shows,  that  there  were  and  are 
debts  due  and  owing  from  the  estate  of  said  ,  deceased, 

and  contracted  by  the  said  ,  widow  of  the  said  , 

deceased,  for  the  support  of  herself  and  her  infant  children 
within  the  past  three  years,  which,  together  with  the  costs  and 
expenses  of  proceedings  in  this  court  in  the  above  matter  paid 
by  your  petitioner,  amount  to  the  sum  of  dollars;  and 

that  the  said  ,  and  the  infant  children  of  said  , 

deceased,  being  without  a  suitable  house  or  home,  are  desirous 
that  the  balance  of  the  said  sum  in  the  hands  of  your  petitioner 
should  be  appropriated  for  the  purpose  of  building  a  suitable 
dwelling-house  for  them  upon  the  remaining  portions  of  the  real 
estate  of  said  ,  deceased. 

Your  petitioner  therefore  prays,  that  an  order  may  be  made 
directing  your  petitioner  to  pay  all  debts  so  contracted  as  afore- 
said still  remaining  due  and  owing,  and  confirming  all  the  pay- 
ments already  made  by  your  petitioner  for  the  satisfaction  of  the 
said  debts,  and  to  dispose  of  the  remainder  of  said  sum,  being 
dollars,  or  so  much  thereof  as  may  be  necessary  for  the 
purpose  of  building  and  furnishing  a  suitable  dwelling-house 
for  the  widow  and  family  of  said  ,  deceased. 

And  your  petitioner  will  ever  pray,  &c. 

Order  of  reference  on  foregoing  petition. 

{Title  of  matter.) 
Upon  reading  and  filing  the  petition  of  ,  administrator 

with  the  will  annexed  of  ,  deceased,  setting  forth,  among 

other  things,  that  ,  widow  of  said  ,  has,  within  the 

past  three  years,  expended  for  the  support  of  herself  and  her 
infant  children,  and  that  he  has  expended  for  the  costs  and 
expenses  of  the  proceedings  in  this  court  in  this  matter,  the  sum 
of  dollars,  and  praying  that  an  order  be  made  directing 

him  to  pay  such  debts,  as  above  mentioned,  as  remain  unpaid, 
and  confirming  such  payments  of  said  debts  as  have  already 


DISTRIBUTION   OF   PEESONAL   PROPERTY.  713 

been  made  by  him  :    It  is,  on  this  day  of  ,  eighteen 

hundred  and  ,  ordered,  that  it  be  referred  to  ,  one 

of  the  special  masters  of  this  court,  to  ascertain  and  report  what 
amount  the  said  has  expended  within  three  years  past  for 

the  support  and  maintenance  of  herself  and  the  children  of  her- 
self and  the  said  ,  and  what  amount  has  been  paid  and 
incurred  for  the  costs  and  expenses  of  the  proceedings  in  this 
court  in  this  matter ;  and  that  the  said  master  make  his  report 
with  all  convenient  speed. 


APPLICATION  FOR  PAYMENT  OR  DELIVERY  TO 
LEG/LTEE  IN  REMAINDER  OF  PERSONAL 
PROPERTY  BEQUEA.THED  FOR  LIFE  TO  A 
PERSON  PRESUMED  TO  BE  DEAD.(a) 

Petition. 

In  Chancery  of  New  Jersey. 

To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey : 

The  petition  of  ,  of  the  county  of  ,  in  the  State 

of  New  Jersey,  respectfully  shows,  that  he  is  a  son  of  , 

deceased,  late  of  the  township  of  ,  in  the  county  of  , 

(a)  Whenever  any  personal  prop-  after   due  proof  of  such   absence   or 

•  erty  or  any  interest  therein  has  been  conceabuent,   to  order,  adjudge   and 

or  shall  be  given  or  bequeathed,  in  decree  that  the  executor  or  executors 

and  by  any  last  will  and  testament,  of  said  will  and  testament,  or  the  ad- 

either  to  or  for  the  use  of  any  person  ministrator  or  administrators,  cum  tes- 

or  persons  for  life,  or  for  a  term  of  tamento  annexo  or  otherwise,  or  the 

years,  or  for  any  other  limited  period,  trustee  or  trustees  having  the  charge 

or  in  remainder,  after  the  death  of  or  control  of  said  personal  property, 

any  other  person  or  persons  who  shall  shall  pay  and  deliver  such  property, 

have   remained    beyond   the   sea,  or  or  such   interest    therein,   witli   any 

have  been  absent  from  or  concealed  accumulations  thereof,  unto  or  for  the 

in  this  state  for  seven  years  alter  the  use  of  the  said  person  or  persons  so 

death  of  the  testator  or   testatrix,  it  entitled  to  receive  the  same  after  the 

shall  be  lawful  for  the  Chancellor,  in  death  of  such  other  person  or  persons 

any  proceeding  to  be  had  in  the  Court  so  absent  or  concealed,  upon  his,  her 

of  Chancery,  upon  the  petition  of  any  or  their  giving   to  said  executor  or 

one    interested    in    the   matter,    and  executors,  administrator  or  adminis- 


714  FORMS  OF  PLEADINGS. 

in  the  State  of  New  Jersey,  and  that  he  is  one  of  the  legatees 
mentioned  in  his  father's  last  will  and  testament,  of  which  the 
following  is  a  true  copy  :  (recite  will  and  probate  thereof.) 

And  your  petitioner  further  shows,  that  the  said  ,  men- 

tioned in  his  father's  last  will  and  testament,  was  a  brother  to 
your  petitioner  ;  that  in  the  month  of  ,  eighteen  hundred 

and  ,  the  said  ,  left  the  city  of  ,  in  the  State 

of  New  Jereey,  and  went  into  the  State  of 

And  your  petitioner  further  shows,  that  he  has  not  seen  nor 
heard  from  his  said  brother  since  the  mouth  of  ,  eighteen 

hundred  and  ,  directly  or  indirectly,  and  though  he  has 

used  every  available  means  to  ascertain  the  whereabouts  of  his 
said  brother,  has  failed  entirely  to  hear  anything  from  him,  and 
he  believes  his  said  brother  is  dead. 

And  your  petitioner  further  shows,  that  and  , 

and  your  petitioner  are  the  legal  representatives  of  ,  here- 

inbefore mentioned. 

And  your  petitioner  further  shows,  that  his  said  brother, 
,  was  married  to  one  ,  and  had  no  issue  by  her ; 

and  that  the  said  ,  since  his  said  brother's  absence,  has 

married  another  person. 

Your  petitioner  therefore  prays,  that  your  Honor  will  order, 
that  and  ,  executors  of  the  last  will  and  testament 

of  ,  deceased,  pay  and  deliver  such  property  bequeathed 

to  the  said  executors  in  trust  for  the  said  ,  with  all  accu- 

mulations thereon,  unto  your  petitioner  and  ,  the  legal 

representatives  of  said 

And  your  petitioner  will  ever  pray,  &c. 

{Add  usual  affidavit  of  verification.) 

trators,  trustee  or  trustees,  a  refunding  shall  be  a  full  and  complete  protec- 

bond  or  bonds,  without  any  sureties  tion   to   said   executor  or   executors, 

whatever,  but  otherwise  in  the  form  administrator  or  administrators,  trus- 

or   to   the   efl'ect   mentioned   or   jjre-  tee  or  trustees,  in  case  said  person  or 

scribed   in   and   by   the   seventeenth  persons  so  absent  or  concealed,  or  his, 

section   of  the   act   entitled  "An  act  her    or    their    legal    representatives 

concerning  executors,  and  the  admin-  shall  at  any  time  afterwards  appear 

istration  and  distribution  of  intestates'  and   claim  said   property,  or  interest 

estate?,"   approved    April    sixteenth,  therein,   and   said   accumulations,  or 

one    thousand    eight     hundred    and  any  part  thereof.     Rev.,  "Death,'^  §  6 ; 

forty-six  ;    and   such   bond   or   bonds  Mev.  Sup.,  ''Death,"  p.  216. 


DISTEIBUTION   OF   PERSONAL   PROPERTY.  715 

Order  of  reference  on  foregoing  petition. 

(Title  of  matter.) 
Upon  reading  and  filing  the  petition  of  in  the  above 

matter,  setting  forth  that   he  is   the  son  of  ,  deceased, 

whose  last  will  and  testament  was  duly  proved  before  the  sur- 
rogate of  the  county  of  ,  and  stating,  among  other  things, 
the  presumed  death  of  ,  one  of  the  legatees  under  the  said 
will,  and  a  brother  of  the  petitioner,  and  praying  that  the  execu- 
tors of  said  last  will  and  testament  pay  to  the  said  petitioner? 
and  his  brothers  and  sisters,  in  the  said  petition  named,  the  legal 
representatives  of  the  said  ,  the  property  bequeathed  to 
the  said  executors  by  said  will  in  trust  for  the  said  ,  with 
all  accumulations  thereon  :  It  is,  on  this  day  of  , 
eighteen  hundred  and  ,  on  motion  of  ,  of  counsel 
with  the  petitioner,  ordered,  that  it  be  referred  to  ,  one  of 
the  special  masters  of  this  court,  to  inquire  into  and  report  the 
truth  of  the  allegations  of  the  said  petition,  and  who  are  the 
heirs  or  devisees  of  ,  the  testator  in  said  petition  named, 
and  the  heirs  or  legal  representatives  of  said  ;  and  what 
proportion  of  the  moneys  held  in  trust  for  by  the  said 
executors  is  payable  to  the  said  heirs  or  devisees,  or  legal  repre- 
sentatives, or  any  of  them ;  and  if  the  said  ,  late  the 
widow  of  the  said  ,  is  entitled  to  any  part  thereof;  and  if 
any,  what  part  thereof;  and  in  what  amount  the  said  petitioner, 
and  the  other  persons  entitled  to  said  moneys,  should  be  required 
to  give  bond  according  to  law  ;  and  the  said  master  is  to  report 
thereon  with  all  convenient  speed. 

Master's  report. 

(Title  of  matter.) 

In  pursuance  of  an  order  made  in  the  above  matter,  dated 
the  day  of  ,  eighteen  hundred  and  ,  directing 

me,  one  of  the  special  masters  of  this  court,  to  inquire  into  and 
report  the  truth  of  the  allegations  of  the  petition  filed  in  this 
matter,  and  to  inquire  who  are  the  heirs  or  devisees  of  , 

the  testator  in  said  petition  named,  and  who  are  the  heirs  or 
legal   representatives  of  ;   and  what  proportion  of  the 


716  FORMS  OF   PLEADINGS. 

moneys  held  in  trust  for  by  the  executors  of  the  said 

,  deceased,  is  payable  to  the  said  legal  representatives, 
heirs  and  devisees,  or  any  of  them  ;  and  if  the  said  ,  late 

the  wife  of  the  said  ,  is  entitled  to  any  part  thereof,  and 

if  any,  what  part  thereof;  and  in  what  amount  the  said  peti- 
tioner, and  other  persons  entitled  to  said  moneys,  should  be 
required  to  give  bond  according  to  law :  I  respectfully  report  to 
his  Honor  the  Chancellor,  that  I  have  been  attended  by  the 
solicitor  of  said  petitioner,  and  by  and  ,  executors 

of  the  said  ,  deceased,  and  that  I  have  taken  testimony  in 

the  said  matter,  which  is  hereto  annexed,  making  part  of  this 
my  report. 

And  I  further  certify  and  report,  that  from  the  evidence  taken 
in  said  matter,  it  satisfactorily  appears  that  the  said  made 

his  last  will  and  testament  in  due  form  of  law,  bearing  date  the 
day  of  ,  eighteen  hundred  and  ,  and  did 

thereby,  among  other  things,  order  and  direct  as  follows :  {recite 
bequest  and  probate  of  will.) 

And  I  further  report,  that  it  appears  from  the  evidence  before 
me,  that  the  executors  named  in  said  will  made  a  settlement  of 
said  accounts  of  the  estate  of  said  ,  deceased,  before  the 

Orphans'  Court  of  the  county  of  ,  at  the  term  of 

said  court,  eighteen  hundred  and  ,  and  there  was  ascer- 

tained and  declared  to  be  in  their  hands  as  the  residue  of  said 
estate,  the  sum  of  dollars,  for  distribution  in  accordance 

with  the  provisions  of  said  will ;  the  said  executors  having 
retained  dollars  in  their  hands  from  said  estate,  the  interest 

thereon  to  be  paid  to  the  widow  of  said  ,  deceased,  during 

her  life,  and  after  her  death  to  be  distributed  according  to  the 
provisions  of  said  will. 

And  I  further  report,  that  each  of  the  said  residuary  legatees 
was  entitled  to  receive  and  be  paid  the  equal  undivided 
part  of  the  aforesaid  sum  of  dollars,  except  the  said  , 

who  was  entitled  to  receive  the  interest  on  his  share  of  said  sum, 
yearly,  during  his  life,  and  after  his  death  the  principal  to  be 
paid  to  his  children  or  legal  representatives. 

And  I  further  report,  that  it  appears  that  the  whole  of  the 
said  's  share  of  said  money  still  remains  in  the  hands 


DISTRIBUTION   OF   PERSONAL   PROPERTY.  717 

of  said  executors,  and  that  it  satisfactorily  appears  from  the 
evidence  taken  before  me,  that  the  said  left  the  State  of 

New  Jersey  sometime  in  the  month  of  ,  eighteen  hundred 

and  ,  with  the  declared  intention  of  going  to  {describe 

destination; )  that  his  family  and  friends,  after  he  left  this  state, 
received  letters  from  him,  from  time  to  time,  in  the  year  eighteen 
hundred  and  ,  at  which  time  he  was  living  in  the  State 

of  ,  and  in  his  last  letter  stated  that  he  was  going  to  return 

home  in  a  few  days ;  and  since  that  time  his  family  or  friends 
have  never  received  any  letters  or  communications  from  him  ; 
and  though  they  have  made  diligent  inquiry  to  ascertain  if  he 
was  living,  they  have  never  been  able  to  learn  what  became  of 
him. 

And  I  further  report,  that  the  said  was,  at  the  time  he 

left  the  State  of  New  Jersey,  a  married  man ;  that  he  and  his 
wife  kept  house  together  in  the  city  of  ,  within  a 

yery  short  perod  of  time  before  his  leaving  for  ;  that  they 

had  no  children  by  their  marriage ;  and  that  his  wife  , 

since  he  left,  has  been  married  to  another  man  by  the  name 
of  ,  and  is  still  living. 

And  I  further  report,  that  it  satisfactorily  appears  from  the 
testimony  taken  in  this  matter  that  the  said  has  absented 

himself  from  the  State  of  New  Jersey  for  seven  years  last  past 
successively  and  upwards,  and  that  during  that  time  his  relatives 
and  friends  have  had  no  tidings  of  him. 

And  I  further  report,  that  the  said  residuary  funds  of  said 
estate  in  the  hands  of  said  executors  arose  from  the  sale  of  lands 
belonging  to  said  at  the  time  of  his  death,  as  appears  by 

Exhibit  No.  on  part  of  petitioner. 

And  I  further  report,  that  the  said  [names  of  distributees)  are 
the  legal  representatives  of  ,  deceased,  and  entitled  to 

demand  and  receive  from  the  said  executors  of  the  said  , 

deceased,  the  share  and  interest  by  them  held  in  trust  for  the 
said  in  the  estate  of  the  said  ,  deceased. 

And  I  find  and  report,  that  the  principal  and  interest  of  said 
trust  money  in  the  hands  of  the  said  executors,  and  held  by  them 
for  the  benefit  of  the  said  ,  on  this  day  amounts  to  the 

sum  of  dollars. 


718  FORMS  OF   PLEADINGS. 

And  I  further  report,  that  the  said  ,  the  late  wife  of 

the  said  ,  deceased,  is  entitled  to  receive  and  have  paid  to 

her  by  the  said  and  ,  executors  as  aforesaid,  the 

sum  of  dollars. 

And  I  further  report,  that  the  said  (names  of  distributees)  are 
each  entitled  to  receive  and  be  paid  by  said  executors  the  sum 
of  dollars  as  their  respective  share  and  interest  in  the  said 

trust  fund,  making  the  aforesaid  sum  of  dollars. 

And  I  further  report,  that  the  schedule  hereunto  annexed, 
making  part  of  this  my  report,  contains  a  statement  and  account 
of  the  principal  and  interest  of  the  said  trust  fund,  and  to  which, 
for  greater  certainty,  I  refer. 

And  I  further  report,  that  the  said  {names  of  distributees) 
should  respectively  execute  a  bond  to  the  said  executors,  in  the 
form  prescribed  by  law. 

Respectfully  submitted,  &c. 

{Signature  of  master.) 

Bond  from  distributee  to  executors.  Know  all  men 
by  these  presents,  that  I,  ,  of  the  township  of  , 

in  the  county  of  ,  and  State  of  New  Jersey,  am  held  and 

firmly  bound  unto  and  ,  executors  of  , 

deceased,  in  the  sum  of  dollars,  lawful   money  of  the 

United  States  of  America,  to  be  paid  to  the  said  and 

,  executors  aforesaid,  or  to  their  certain  attorney  or 
assigns ;  to  which  payment  well  and  truly  to  be  made,  I  bind 
myself,  my  heirs,  executors  and  administrators,  firmly  by  these 
presents.     Sealed  with  my  seal,  and  dated  the  day  of  , 

eighteen  hundred  and 

Whereas,  made  application,  by  petition,  to  the  Court  of 

Chancery  of  New  Jersey,  as  one  of  the  legal  representatives  of 
,  for  a  distributive  share  and  interest  in  the  moneys  held 
by  and  ,  executors  of  ,  deceased,  in  trust  for 

the  benefit  of  ,  under  the  provisions  of  the  will  of  the 

said  ;  and  whereas,  such   proceedings  were  had  in  said 

matter  that  it  appeared  that  the  said  is  one  of  the  legal 

representatives  of  said  ,  who  has  absented  himself  from 

the  State  of  New  Jersey  for  seven  years  and  upwards  succes- 


DISTRIBUTION   OF   PERSONAL   PROPERTY.  719 

sively,  and  is  presumed  to  be  dead,  and  that  the  said  was 

entitled  to  dollars  of  said  fund ;  and  whereas,  the  said 

and  ,  executors  of  said  ,  deceased,  have 

paid  to  the  said  the  said  sum  of  dollars,  in  full 

satisfaction  and  payment  of  his  distributive  share  and  interest 
in  the  moneys  held  in  trust  by  said  executors  for  the  benefit  of 
said  ,  under  said  will : 

Now,  therefore,  if  the  said  and  ,  executors  of 

,  deceased,  should  be  hereafter  compelled  to  pay  to  said 
,  or  to  any  other  person  or  persons  other  than  the  brothers 
and  sisters  of  said  ,  and  his  said  wife  ,  the  whole 

or  any  part  of  said  moneys  so  held  by  them  in  trust  for  the 
benefit  of  said  and  others,  the  said  shall  refund  and 

pay  back  to  said  and  his  ratable  part  of  the  said 

moneys,  with  costs  of  suit  and  charges  that  the  said  executors 
may  be  compelled  to  pay,  in  proportion  to  the  money  received 
by  said  of  said  trust  fund,  then  said  obligation  to  be  void, 

otherwise  to  remain  in  full  force  and  virtue. 

Signed,  &c.  {Signature  of  distributee.) 

Order  of  distribution  to  legatees  in  remainder,  &c. 

{Title  of  matter.) 

This  matter  being  opened  to  the  court  by  ,  of  counsel 

with  the  petitioner,  and  it  appearing  by  a  report  heretofore  made 
by  ,  one  of  the  special  masters  of  this  court,  and  now  on 

file,  that  the  sum  of  dollars  of  the   estate  of  , 

deceased,  in    the   petition    mentioned,    is   held    by  and 

,  executors  of  ,  deceased,  for  the  benefit  of 

And  it  further  appearing,  that  the  said  has  absented 

himself  from  the  State  of  New  Jersey  for  seven  years  succes- 
sively and  upwards ;  and  that  during  that  time  his  relatives  and 
friends  have  heard  no  tidings  of  him  ;  and  that  {names  of  dis- 
tributees) are  the  legal  representatives  of  said  ,  deceased, 
and  entitled  to  demand  and  receive  from  the  said  executors  of 
the  said  ,  deceased,  the  share  and  interest  by  them  held  in 
trust  for  the  said             of  the  estate  of  the  said  ,  deceased. 


720  FORMS  OF  PLEADINGS. 

And  it  further  appearing,  that  the  said  ,  the  late  wife 

of  the  said  ,  is  entitled  to  receive  and  have  paid  to  her  by 

the  said  executors  the  sum  of  dollars,  and  that  the  said 

{names  of  distributees)  are  each  entitled  to  receive  and  be  paid  by 
the  said  executors  the  sum  of  dollars,  as  their  respective 

share  and  interest  in  the  said  trust  fund. 

And  it  further  appearing,  that  each  of  the  legal  representa- 
tives of  the  said  above  mentioned  have  respectively  given 
bond  to  the  said  executors  according  to  law ;  which  said  bonds 
have  been  approved  as  to  form  by  the  said  master,  and  are  now 
on  file  in  this  court :  It  is,  on  this  day  of  ,  eighteen 
hundred  and  ,  ordered,  that  the  said  executors  pay,  within 
ten  days  from  the  date  of  the  service  of  a  copy  of  this  order 
upon  them,  to  (the  late  wife)  the  sum  of  dollars;  and 
within  the  same  time  also  pay  to  {names  of  distributees)  each  the 
sum  of            dollars. 


APPLICATION    FOR    THE    APPOINTMENT    OF   A 
NEW   TRUSTEE.(a) 

Petition  for  the  appointment  of  a  new  trustee, 
under  a  will,  in  place  of  a  deceased  trustee.(6) 

In  Chancery  of  New  Jersey. 
To  his  Honor  ,  Chancellor  of  the  State  of  New  Jersey  t 

The  petition  of  and  ,  adult  children  of  , 

deceased,  and  and  ,  infant  children  of  the  said 

(a)  The  appointment  of  new  trus-  (6)  Applications  to  appoint  or  sub- 
tees  is  an  ordinary  remedy  enforced  stitute  trustees  may  be  made  by  bill 
by  courts  of  equity  in  all  cases  where  or  petition,  and  when  made  by  peti- 
there  is  a  failure  of  suitable  trustees  tion  shall  set  forth  the  trust  suffi- 
to  perform  the  trust,  either  from  aeci-  ciently  to  show  who  are  interested  in 
dent  or  from  the  refusal  of  the  old  the  same  as  cesiuis  que  trust,  vested  or 
trustee  to  act,  or  from  their  original  contingent,  and  as  trustees.  Rule  162. 
or  supervenient  incapacity  to  act,  or  In  case  any  lands  or  real  estate  held 
from  any  other  cause.  Story's  Eq.  PL,  in  trust  shall,  upon  the  death  of  the 
I  1287 ;  (J Kill  v.  Chmpbell,  3  Gr.  Ch.  sole  trustee,  or  of  the  survivor  of  two 
13;  Green  v.  Bluekwell,  4  Stew.  Eq.  37.  or  more  trustees,  descend  to  and  be- 


APPOIJSITMENT   OF   NEW   TRUSTEE. 


721 


,  by  ,  their  next  friend,  all  of,  &c.,  respectfully 

shows,  that  ,  the  father  of  your  petitioners,  being  in  his 

lifetime  seized  and  possessed  of  considerable  real  and  personal 


come  vested  in  any  infant  under  the 
age  of  twenty-one  years  as  trustee,  or 
in  case  any  sole  trustee  shall  be  de- 
clared a  lunatic,  or  shall  abscond  or 
remove  from  this  state,  or  become  in 
any  manner  legally  incapable  of  exe- 
cuting the  trust,  it  shall  be  lawful  for 
the  *  *  *  Court  of  Chancery, 
upon  tlie  application  of  any  person 
interested,  alter  notice  to  all  parties 
concerned,  to  remove  such  trustee  and 
appoint  a  new  trustee  in  his  jjlace  ; 
and  such  new  trustee  shall  be  seized 
of  the  trust  estate  as  fully  and  in  the 
same  manner  as  the  original  trustee 
was ;  provided,  that  the  court  iii  its 
discretion  may  require  such  new 
trustee  to  enter  into  bond  with  sure- 
ties in  such  manner  as  the  court  may 
direct,  conditioned  for  the  perform- 
ance of  the  duties  of  such  office ;  if 
any  account  shall  be  necessary  or 
required,  the  application  shall  be 
made  to  the  Court  of  Chancery.  Rec, 
"  Trustees,"  ^  4.  Any  trustee  ap- 
pointed under  the  foregoing  section, 
or  who  heretofore  has  been,  or  here- 
after shall  be,  appointed  or  substituted 
by  *  *  "  the  Court  of  Chancery 
in  the  place  of  any  trustee,  appointed 
by  a  will  or  other  instrument  creating 
or  continuing  a  trust,  shall  have  the 
same  power  to  sell  and  convey  lands 
and  other  property  as  was  given  to 
and  vested  in  the  original  trustee,  or 
trustees  named  in  or  ap[)ointeil  by 
sucii  will  or  instrument,  even  in  cases 
where  sucli  power  may  be  directed  to 
be  exercised  at  the  discretion  of  buch 
original  trustee  or  trustees,  unless 
such  power  of  sale  shall  by  such  will 
or  instrument  be  expressly  prohibited 


to  any  substituted  trustee.  Id.,  §  5 ;. 
amended  by  Pamph.  L.,  1892,  p.  443, 
Whereas,  the  acts  relating  to  descents- 
have  always  been  construed  not  to- 
extend  to  estates  granted  or  devised 
to  trustees  so  that  the  estate  descended 
to  the  heir  at  common  law,  but 
doubts  have  been  suggested  whether 
the  act  respecting  joint  tenants  and 
tenants  in  common  does  not  apply  to 
estates  granted  or  devised  to  trustees, 
although  the  same  reason  of  conveni- 
ence applies  to  both  cases,  and  the 
survivor  or  survivors  should  take  the 
legal  estate  and  such  doubts  should  be 
set  at  rest;  therefore,  all  estates  here- 
tofore or  hereafter  to  be  granted  or 
devised  to  trustees  shall  be  construed 
to  have  vested  and  to  vest  an  estate  in 
joint  tenancy  in  such  trustees,  and  in 
case  any  trustee  has  been  or  shall  be 
removed,  and  a  conveyance  or  devise 
has  been  or  shall  be  made  by  the 
trustee  or  trustees,  so  removed  to  the 
old  and  new  ti'ustees,  or  to  new  trus- 
tees, such  conveyance  or  devise  shall 
be  construed  to  vest  in  the  old  and 
new  trustees,  or  tlie  new  trustees,  an 
estate  in  joint  tenancy,  notwithstand- 
ing the  want  of  any  unity.  Rev., 
"Trustees,"  ?  1.  Whei'eas,  many  in- 
conveniences may  arise  by  reason  that 
persons  under  the  age  of  twenty-one 
years,  having  estates  in  lands,  tene- 
ments and  hereditaments,  only  in 
trust  for  others,  or  by  way  of  mort- 
gage, cannot,  though  by  the  direction 
of  the  cestui  que  trust  or  mortgagor,  con- 
vey any  sure  estate  in  any  such  lands, 
tenements  or  hereditaments  to  any 
person  or  persons :  for  remedy  whereof 
it  siiall  be  lawfid  for  any  such  person 


2v 


722 


FORMS   OF   PLEADINGS. 


estate,  made,  executed  and  published  his  last  will  and  testament, 
in  writing,  in  due  form  of  law,  dated,  &c.,  and  therein  and 
thereby  did,  among  other  things,  order  and  direct  as  follows, 
viz.,  [recite  so  much  of  the  will  as  is  necessary  to  the  case,)  as  by 
the  said  will,  or  a  duly  certified  copy  thereof,  ready  to  be  pro- 
duced, will  more  fully  appear. 


or  persons  nuder  the  age  of  twenty- 
one  years,  by  direction  of  the  Court  of 
Chancery,  by  an  order  made  upon 
hearing  all  parties  concerned,  on  the 
petition  of  the  person  or  persons  for 
whom  such  infant  or  infants  shall  be 
seized  or  possessed  in  trust,  or  of  the 
mortgagor  or  mortgagors,  or  guardian 
or  guardians  of  such  infant  or  infants, 
or  person  or  persons  entitled  to  the 
moneys  secured  by  or  upon  any  lands, 
tenements  or  hereditaments  whereof 
iiny  infant  or  infants  are  or  shall  be 
seized  or  possessed  by  way  of  mort- 
gage, or  of  the  person  or  persons  enti- 
tled to  the  redemption  thereof,  to 
convey  and  assure  any  such  lands, 
tenements  or  hereditaments,  in  such 
manner  as  the  said  Court  of  Chancery 
shall  by  such  order  direct,  to  any 
other  person  or  persons ;  and  such 
•conveyance  or  assurance,  shall  be  as 
good  and  eflectual  in  law,  to  all  in- 
tents and  purposes  whatsoevei-,  as  if 
the  said  infant  or  infants  were,  at  the 
time  of  making  such  conveyance  or 
assurance,  of  the  full  age  of  twenty- 
one  years.  Rev.,  "Trustees,"  '^.  2.  All 
and  every  such  infant  or  infants,  being 
only  trustee  or  trustees,  mortgagee  or 
mortgagees  as  aforesaid,  shall  and 
may  be  compelled  by  order,  so  as 
aforesaid  to  be  obtained,  to  make  such 
conveyance  or  conveyances,  assurance 
or  assurances  as  aforesaid,  in  like 
manner  as  trustees  or  mortgagees  of 
full  age  are  compellable  to  convey  or 
assign  their  trust  estates  or  mortgages. 
Id.,  §  3. 


Where  the  surety  in  any  bond 
given  by  a  trustee  shall  discover  that 
such  trustee  is  wasting  or  mismanag- 
ing the  estate,  whereby  the  said 
surety  may  become  liable  to  loss  or 
damage,  the  court  making  the  appoint- 
ment, upon  application  of  such  surety, 
and  upon  sufiBcient  reason  therefor, 
may  order  every  such  trustee  to  render 
an  account  of  his  or  her  trusteeship  to 
such  surety;  and  if  it  shall  appear 
that  such  trustee  has  embezzled, 
wasted,  misajjplied,  mismanaged,  or 
not  sufficiently  secured  said  estate,  in 
any  such  case  the  said  court  shall 
dii'ect  the  said  trustee  to  give  separate 
security  to  his  or  her  surety,  for  the 
true  payment  of  the  balance  remain- 
ing in  his  or  her  hands,  to  be  paid 
according  to  the  trust ;  and  on  neglect 
or  refusal,  it  shall  be  lawful  for  the 
said  court  to  revoke  the  trusteeship, 
and  grant  the  same  to  such  person  or 
persons  having  right  thereto,  or  other 
person  or  persons  as  will  give  suffi- 
cient bonds  in  the  usual  form ;  and  in 
such  case,  it  shall  be  the  duty  of  the 
newly-appointed  trustee  immediately 
to  bring  an  action  on  the  case  against 
such  removed  trustee,  and  hold  him 
or  her  to  bail,  and  in  such  action  to 
recover  the  amount  of  all  moneys, 
assefs,  rents,  issues  and  profits  received 
by  such  trustee,  and  not  applied 
according  to  law,  as  w^ell  as  all  dam- 
ages done  or  committed  by  such  trus- 
tee in  respect  to  the  estate  in  his  or 
her  hands.     Rev.,  "  Trustees,"  I  6. 


APPOINTMENT  OF  NEW  TRUSTEE.  723 

And  your  petitioners  further  show,  &c.,  [state  here  the  death  of 
the  testator,  and  the  probate  of  will,  and  the  execution  of  the  trust 
by  the  trustee  and  executor,  as  far  as  may  be  necessary.) 

And  your  petitioners  further  show,  that  the  said  con- 

tinued so  to  exercise  the  duties  of  such  trustee  and  executor  as 
aforesaid  until  [date,)  when  he  departed  this  life  intestate. 

And  your  petitioners  further  show,  that  the  said  trust  estate 
held  by  the  said  for  their  benefit,  under  the  said  will,  at 

the  time  of  the  death  of  said  trustee,  consisted  of  the  following 
items,  viz.,  {state  here  a  schedule  of  the  real  and  personal 
property.) 

And  your  petitioners  further  show,  that  by  the  death  of  the 
said  trustee,  the  estate  of  their  father,  so  held  in  trust  for  their 
benefit,  remains  without  any  trustee  to  administer  the  same 
according  to  the  intention  of  their  father,  as  expressed  in  his 
said  will ;  that  they  are  wholly  inexperienced  in  business,  two 
of  them  being  minors,  and  desire  that  the  said  estate  be  taken 
under  the  protection  of  this  court,  and  that  a  new  trustee  be 
appointed  to  administer  the  same. 

And  your  petitioners  further  show,  that  there  is  no  person  in 
being,  besides  your  petitioners,  who  has  any  beneficial  interest 
vested  or  contingent  in  the  said  real  and  personal  estate  devised 
and  bequeathed  in  trust  as  aforesaid. 

Your  petitioners  therefore  pray,  that  ,  of  (residence),  or 

some  other  fit  and  proper  person,  may  be  appointed  trustee  under 
this  application,  in  the  place  and  stead  of  ,  deceased,  with 

full  power  to  take  possession  of  all  the  said  trust  estate,  and  to 
hold  and  dispose  of  the  same  under  the  direction  of  this  court,  to 
to  be  given  from  time  to  time,  in  order  that  the  same  may  be 
secured  and  applied  to  the  purposes  set  forth  in  the  said  will. 

And  your  petitioners,  &c. 

{Signature  of  solicitor  and  counsel.) 

{Add  ojidavit  of  verification.) 


724  FORMS   OF   PLEADINGS. 

Notice  of  application,  by  petition,  for  appointment 
of  a  new  trustee. («^) 

(  When  notice  of  this  application  is  necessary,  it  may  be  in  the  fol- 
lowing or  like  form.) 

rp  In  Chancery  of  New  Jersey. 

You  are  hereby  notified  that  application  will  be  made  to  the 
Chancellor,  at  ,  on  ,  the  day  of  next, 

(or  "  instant,"  as  the  case  may  be,)  at  o'clock  in  the  fore- 

noon, by  the  subscriber,  upon  a  petition  filed  for  that  purpose, 
for  the  appointment  of  a  new  trustee  in  the  place  and  stead  of 
,  deceased,  the  trustee  named  in  the  last  will  and  testa- 
ment of  ,  deceased. 

(Signature  of  applicant.) 
Dated,  &c. 

Order  of  reference  on  foregoing  petition. 

In  the  matter  of  the  application   ^ 

of  for  the  appointment     > 

of  a  new  trustee.  J 

Upon  reading  the  petition  of  and  ,  filed  in  the 

above-stated  matter,  duly  verified,  setting  forth,  among  other 
things,  that,  &c.,  (recite  shortly  the  statements  and  prayer  of  the 
petition.) 

And  it  appearing  that  due  notice  of  this  application  has  been 
given  to  ,  [the  persons  interested,  who,  under  the  rule,  are 

to  be  notified :) 

It  is,  on  this,  &c.,  on  motion,  &c.,  ordered,  that  it  be  referred 
to  ,  one  of  the  special  masters  of  this  court,  to  ascertain 

(a)  Notice  shall  be  given  to  each  patty  at  his  post-ofijce  address,  so  that 

person   interested  as  cestui  que  (rust,  the   same  would   reach  him,  by  the 

vested  or  contingent,  or  as  trustee,  of  usual  course  of  the  mail,  twenty  days 

the   time,  place   and   object  of  such  before  such   time ;   and  in  case  such 

application,  by  serving  the  same  in  party  shall  be  an  infant,  such  notice 

person  or  at  his  residence,  ten  days  shall  be  served  on  his  or  her  parent 

before  such  application ;    and  if  the  or  guardian,  or  in  such  other  manner 

party  reside  out  of  the  sta'e,  by  mail-  as  the  Chancellor,  on  application,  may 

ing  the  same  prepaid,  directed  to  such  direct.     Eule  162. 


APPOINTMENT  OF  NEW  TRUSTEE.  725 

and  report  the  truth  of  the  allegations  of  the  said  petition ;  and 
to  inquire  and  report  whether  ,  of  (residence,)  the  person 

named  in  the  prayer  of  said  petition,  is  or  is  not  a  fit  and 
proper  person  to  be  appointed  a  trustee  in  the  place  of  , 

deceased,  to  execute  the  trust  declared  in  the  will  of  said 
deceased,  with  all  the  rights,  powers,  privileges  and  duties  inci- 
dent thereto;  and  if  not,  then  to  name  some  other  suitable 
person  to  be  such  trustee ;  and  that  he  also  report  what  security 
such  trustee,  when  appointed,  should  give  for  the  due  perform- 
ance of  his  trust ;  and  that  said  master  report  with  all  convenient 
speed ;  and  all  further  directions  are  reserved  until  the  coming 
in  of  said  report. 

Master's  report. 

{Title  of  matter.) 

In  pursuance  of  an  order  of  this  court,  made  in  the  above- 
stated  matter,  dated,  &c.,  whereby  it  was  referred  to  me,  one 
of  the  special  masters  of  this  court,  to,  &c.,  [state  shortly  the 
directions  of  the  order,)  I  hereby  report  to  his  Honor  the  Chan- 
cellor, that  I  have  been  attended  by  the  solicitor  of  the  peti- 
tioners, and  have  examined  the  matters  referred  to  me  by  said 
order. 

And  I  further  report,  that  the  allegations  of  the  said  petition 
are  true ;  and  that  ,  of  (residence,)  is  a  fit  and  proper  per- 

son to  be  appointed  a  trustee  in  the  place  and  stead  of  , 

deceased,  with  all  the  rights,  powers,  duties  and  privileges  inci- 
dent to  such  appointment,  and  that  said  ,  before  taking 
upon  himself  the  burthen  of  said  trust,  should  give  bond  to  the 
Chancellor,  with  and  as  sureties,  in  the  sum  of 
dollars. 

I  herewith  return  the  depositions  taken  before  me  in  this 
matter,  to  which  I  beg  leave  to  refer. 

Respectfully  submitted,  &c. 

(Signature  of  master.) 


726  FOEMS  OF   PLEADINGS. 

Order  appointing  new  trustee.(a) 

( Title  of  matter.) 

Upon  reading  and  filing  the  report  made  in  the  above-stated 
matter,  by  ,  one  of  the  special  masters  of  this  court, 

bearing  date,  &c.,  and  the  depositions  accompanying  the  same, 
from  which  it  appears  that  the  allegations  of  the  petition  filed 
in  said  matter  are  true ;  and  that  ,  of  (residence,)  is  a  fit 

and  proper  person  to  be  appointed  trustee  in  the  room  and  stead 
of  ,  deceased,  to  execute  the  trusts  declared  in  the  last  will 

and  testament  of  ,  deceased,  with  all  the  rights,  powers, 

duties  and  privileges  incident  to  such  appointment;  and  no  cause 
being  shown  or  appearing  against  confirming  the  said  report : 
It  is,  on  this,  &c.,  on  motion,  &c.,  ordered,  that  the  said  master's 
report  and  all  the  matters  therein  contained  stand  ratified  and 
confirmed. 

And  it  is  further  ordered,  that  said  be  and  he  hereby 

is  appointed  trustee  in  the  room  and  stead  of  ,  deceased, 

to  execute  the  trusts  mentioned  and  declared  in  and  by  the  last 

(o)  Upon  petition   the  Chancellor  satisfaction  of  the  same.     Pamph.  L., 

may  order  the  transfer  of  any  trust  1889,  p.  57.     The   court    may   also, 

funds   in   the   custody   of    or    under  on   the   application   of  an   executor, 

the   control   of   the   Court  of  Chan-  guardian  or  trustee,  continue  the  in- 

cery,  including  the  proceeds  of  sale  vestments  that  came  into  his  hands, 

of    lands    made    by    order    of    the  or  make  such   other  order  touching 

court,  into  the  custody  of  the  proper  the  sale  or  retention  thereof  as  may 

court  of  another  state  or  into  the  cus-  be  just.     Pamph.  L.,  1889,  p.  169. 

tody  of  a  trustee  appointed  by  such  Executors  and  trustees  holding  land 

couit  of  another  state,  wherein  all  the  and   real    estate   in    trust   for   minor 

beneficiaries  reside  or  wherein  all  the  children    may  apply    by   petition    to 

beneficiaries  who  are  in  esse  at   the  mortgage  the  same,  and   apply   the 

time  of  making  such   order   reside.  proceeds    to    the    improvement   and 

The   foreign   trustee  must  give  ade-  erection  of  buildings  on  said  lands, 

(^uate  security.     Pamph.  L.,  1886,  pp.  Pamph.  L.,  1891,  jj.  31. 

61,  354.     See  these  statutes   for   the  Assignees  for  the  benefit  of  creditors 

practice  thereunder.  may  make  sale  of  the  lands  conveyed 

Executors  and  trustees  may  apply  to   them   by   the  debtor,   at   private 

by  petition  to  the  Court  of  Chancery  sale,  on  the  order  of  the  Chancellor, 

to  sell  and  convey  or  mortgage  land  Applications  for  such  order  should  be 

and  real  estate  where  the  same  is  en-  made  by  petition.     The  act  indicates 

cumbered  by  taxes  and  assessments,  the   method   of   procedure.      Pamph. 

and   to  use  the  proceeds   thereof  in  L.,  1888,  p.  122. 


APPOINTMENT   OF   NEW   TRUSTEE.  727 

will  and  testament  of  ,  late  of  (residence,)  deceased,  with 

all  the  rights,  powers,  duties  and  privileges  incident  to  the 
appointment. 

And  it  is  further  ordered,  that  the  said  ,  before  entering 

upon  the  duties  of  his  office,  do  give  bond  to  the  Chancellor  of 
the  State  of  New  Jersey,  in  the  sum  of  dollars,  with  such 

sureties  as  the  Chancellor  shall  approve,  for  the  due  perform- 
ance and  faithful  execution  of  the  trust  reposed. 

And  it  is  further  ordered,  that  the  costs  of  the  proceedings  to 
be  taxed  be  paid  out  of  the  income  {or  "  corpus/'  as  the  court 
may  direct,)  of  the  trust  property. 

And  it  is  further  ordered,  that  all  parties  interested  have  leave 
to  apply  for  further  directions,  if  occasion  shall  require. 


INDEX   TO    FORMS  AND    NOTES. 


THE   LETTER       11       REFERS    TO    THE    NOTE    COMMENCING  ON    THE    PAGE 

PRECEDING  THAT  INDICATED  BY   THE  FIGURES. 

FIGURES  WITHOUT   LETTERS  FOLLOWING  INDICATE  FORMS. 


PAGE. 

Abandonment  of  suit,  rule  as  to  what  is 142(a) 

Aljatement  and  revivor — 
appeal  in  case  of — 

bill  of  revivor  for  purpose  of. 187,  u. 

death  of  respondent,  revivor  as  to  heirs 187,  n.,  315,  n. 

in  what  court  to  be 315,  n. 

general  principles  and  practice  on — 

etiect  of  dismissal  of  original  bill 141(a) 

definition  of 314(a) 

answer  on 314(a) 

order  instead  of  bill  of  revivor 315,  n. 

in  case  of  devise 315,  n. 

after  decree 315,  n. 

affidavits  on  obtaining  order 315,  n. 

when  supplemental  bill  to  be  filed 315,  n. 

bill  of  revivor  may  be  used 315,  n. 

after  death  of  sole  i^arty  after  decree  who  may  revive 317(a) 

in  case  of  lunatic 317(a) 

order  in  case  of  injunction 321(a) 

when  bill  necessary 322(a) 

orders  on  reviving — 

as  to  representatives  of  decea,sed  defendant 316 

sole  complainant 317 

by  defendant 318 

co-complainant,  by  representative,  318 

sole  defendant 319 

co-complainant 320 

survivors  in  name  of  surviving  complainant 314 

against  surviving  defendants 316 

order  of  dismissal  on  default  of  representative 321 


730  INDEX   TO   FORMS    AND   NOTES. 

Abatement  and  revivor — 

statutes—  PAGE. 

as  to  death  of  one  of  several  plaintiffs  or  defendants 315(a) 

making  representatives  parties 316(a) 

on  death  of  sole  complainant 317(a) 

as  to  foreign  executor,  &c 818(a) 

on  death  of  sole  defendant 319(a) 

as  to  representative  of  co-complainant 320(o} 

what  constitutes  end  of  suit 321(a) 

in  case  of  administrator  pendente  life 321(a) 

statutory  provisions  confined  to  certain  suits 322(a) 

Absconding  defendants,  order  of  publication  in  case  of 27 

Absent  defendants — 

affidavits  in  case  of — 

non-residence 23 

by  sheriff;  what  to  contain 23(6),  24,  n. 

in  case  of  concealment 24,  n. 

of  mailing  or  inquiry 31 

defect  in,  may  be  amended 32,  n. 

in  case  of  foreign  corporation 32,  n. 

of  publication  of  notice  to  appear 32 

appearance  of — 

effect  of. 25,n. 

petition  of  defendant  on 26,  n. 

order  for  supersedeas  on 33 

concealment,  in  case  of — 

when  publication  may  be  had  in  case  of. 20,  n. 

sheriff's  affidavit  in  case  of 23(6) 

grounds  of  belief  of,  in  afEdavit.. 24,  n. 

decree  against  statute  as  to 24(6),  25,  n. 

definition  of 24(6) 

divorce,  notice  in  case  of 31 

foreclosure  in — 

order  of  publication  in 27 

statute  regarding 27(a),  29(6) 

order  of  publication  in  case  of  supposed  death 29 

foreign  corporation  as  an 32,  n.,  33,  n. 

husband  and  wife,  when  either  is 28(a) 

inquiry,  what  constitutes ...31(a),  32,  n. 

jurisdiction  over — 

statute  on 24(6) 

what  gives 28(a) 

when  lost 30(a) 

publication  of  notice — 

statute  on 25,  n. 

in  what  county  to  be  made 26(a) 

effect  of  improper 28(a) 

in  foreign  state 28(a) 


INDEX   TO   F0KM8   AND   NOTES.  731 

Absent  defendants — 

publication  of  notice—  page. 

conclusiveness  of. 28(a) 

in  case  of  unknown  residence 29(a) 

form  of. 30 

error  in  name  of  newspaper  as  to 30(a) 

in  case  of  divorce 31 

proof  of  mailing 31 

practice  on 31(a),  32,  n. 

effect  of  non-delivery  of. 26,  n.,  32,  n. 

amendment  of  proof  of  mailing 32,  n. 

affidavit  of. 32 

publication,  order  of — 

common  form 24 

in  foreclosure  suits 27 

partition  suits 28 

case  of  supposed  death 29 

statutes — 

as  to  power  of  court  over 24(6),  25,  n.,  26,  n. 

absconding,  &c.,  mortgagors 27(a) 

partition  suits 28(a) 

in  case  of  supposed  death 29(6),  617(a) 

supersedeas,  order  for 33 

Abstract  of  decree — 

form  of. 222 

filing  of. 222(a) 

recording  of. 222(a) 

effect  of,  as  to  lien  upon  lands 222(a),  223,  n. 

practice  on  decree  for  deficiency 223,  n. 

priority  of  mortgage  over  decree  before  filing  of 223,  n. 

in  case  of  contingent,  &c.,  liability 223,  n. 

must  be  actual  filing 223,  n. 

Account — 

ne  exeat  on  suit  for 14(a),  309(a) 

on  foreclosure 356,  n. 

assignment  of  dower 623,  n, 

interlocutory  decree  for,  between  partners 627 

by  master  on  sale  of  land 697 

Acknowledgment — 
of  deed — 

byslierifi: 241(a) 

master 427 

release  by  distributee 434 

Acknowledgment  of  process — 

by  party  or  solicitor 18(a),  19,  n.,  21,  n. 

in  case  of  citation  in  divorce 21(6) 

by  attorney-general  for  the  state 22(a) 


732  INDEX   TO   FORMS   AND   NOTES. 

Address  of  bill —  page. 

see  that  title  under  "  Bill,"  post. 
Adjournments  — 

in  case  of  commission  to  take  testimony 146(a) 

on  sale  of  land — 

practice  on 213(a) 

appointment  of  master  to  make 219 

statement  of  officer  making 220 

advertisement  of,  in  newspaper 230 

statutes  on 213(a),  219(f0,  230(a),  234(c),  {d) 

Administration  ad  prosequendum — 

when  granted 57  (a 

extent  of  authority  granted 57(a 

binding  effect  of  decree  on 57(a 

terms  of  grant 57  (a 

for  what  purpose  granted 57(a 

petition  to  the  Ordinary  for  letters  of 58 

when  petition  to  be  made  and  practice  on , 58(a) 

order  for 59 

letters  of. 59 

order  admitting  administrator  as  defendant 60 

practice  when  appointment  made  pending  suit 60(a) 

costs  on , 60(a) 

Administrators  and  executors — 

introduction  of  bill  by 5 

allegations  in  bills  by 5(c),  6,  n. 

executors  who  have  qualified  as  parties 6,  n. 

necessity  of  appointment  in  state 6,  n. 

dissenting  administrator 6,  n. 

letters  to,  before  hearing 6,  n. 

not  to  sue  informajMuperis 73(a) 

foreign,  how  suit  may  be  brought  by 6,  n.,  318(a),  332,  n. 

security  for  costs 71,  n  ,  332,  n. 

objection  to,  how  made 332,  n. 

executor,  &c.,  with  power  of  sale,  may  have  partition 402(a) 

Admission  of  parties — 

arresting  proceedings  for 341,  n. 

at  the  hearing — 

order  for  cause  to  stand  over  for 176 

English  practice  on 176(6) 

time  of  application  for 176(6) 

on  court's  own  motion 176(6) 

order  not  to  be  appealed  from 176(6) 

creditor's  bill,  to — 

petition  for 527 

at  what  time  to  be  made 527(a) 

when  notice  of  application  required 527(a),  528,  n. 


INDEX   TO    FORMS    AND    NOTES.  733 

Admission  of  parties — 

creditor's  bill,  to —  page. 

order  admitting  creditor 528 

rights  of  party  admitted 528(a) 

foreclosure,  on — 

rights  of  party  admitted 284,  n. 

statute  on 285(a) 

junior  encumbrancers 341,  n. 

notice  of  application  for — 

form  of 285 

service  of. 283(a),  284,  n. 

order  for — 

form  of • 285 

effect  of. 284,  n. 

cause  not  to  be  delayed  by 284,  n. 

petition  for  — 

form  of,  by  party  defendant 283 

instead  of  supplemental  bill 176(6),  28o(a) 

to  be  verified 283(a) 

service  of. 283(a),  284,  n. 

recitals  in '. 283(a),  286,  n. 

omission  of  setting  out  instrument  in 286,  n. 

neglect  to  make,  effect  of 286,  n. 

Adverse  interests — 

between  husband  and  wife 3(a) 

co-complainants 3(a) 

guardian  and  lunatic 4(a) 

co-administrators 6,  n. 

Advertisements — 

in  partition — 

statute  on. 417(a) 

proof  of,  by  posters 423 

in  newspapers 423 

curing  defective 424(a) 

on  sale  of  land — 

of  sale,  form  of. 217 

method  of. 217(a),  218,  n. 

hour  and  place  of 219(a) 

description  of  premises  in 219(i) 

signing  of -.  219(c) 

of  adjournment 230,  230(a) 

costs  on 234(6),  (^0,  W 

Advisory  masters — 

practice  at  licaring  by 174,  n. 

order  of  reference  to 176 

power  of  Chancellor  to  refer  to 176(a) 

reference  to  discretionary 176(a) 


734  INDEX   TO   FORMS    AND    NOTES. 

Advisory  masters —  page, 

application  for  reference  to • 176(a) 

to  proceed  to  final  decree 176(a) 

Affidavits  — 

absent  defendant,  in  case  of — 

non-residence  of ■ 23 

of  mailing  or  inquiry 31 

publication  of  notice  to  appear , 32 

non-residence  of  infant 51 

administrator  ad  prosequendum 58 

age  of  infant,  as  to 54,  56 

amending  answer,  on l^o,  n. 

answer,  to — 

in  partition • 112 

common  form  of 113 

of  guardian  ad  litem ; 11"± 

jurat  to,  in  case  of  corporation 11-5 

appeal,  service  of  notice  of. I'^Q 

bills,  to- 
by complainant  in  person 16 

agent  or  attorney ^^ 

a  corporation 16(«),  17 

an  attorney  in  fact 17 

omission  to  sign  jurat  to 17(i) 

personal  knowledge  on 17(")»  (c);  2(8(a) 

of  divorce ^54 

interpleader 484 

to  perpetuate  testimony 493 

of  discovery 497,  n.,  500 

christian  name  of  married  woman,  of. 330 

commission  de  6ene  esse,  to  obtain 14/ 

commissioner,  by 151 

commission  to  take  answer 86(6),  88 

concealment  of  defendant,  of. 23(6),  24,  n. 

cross-bill,  to  stay  proceedings 511(a) 

deed  by  sheriff,  to 241 

master  in  partition,  to 428 

demurrer,  to 92 

discovery,  to  bill  of. 497,  n.,  500 

divorce — 

of  non-coUiision 454 

to  petition  for  alimony 46/ 

evidence  at  hearing,  as l/^(^))  278(a) 

examination  of  witnesses,  to  obtain  time  for 161,  n. 

exceptions  to 68(a),  278(a) 

foreclosure,  on — 

of  service  of  notice  of  demand •   203 


INDEX   TO   FORMS   AND    NOTES.  735 

Afl&davils — 

foreclosure,  on —  page. 

to  petition  for  writ  of  assistance ,- 205 

of  service  of  notice  of  motion  for  order 206 

order  for  possession 207 

on  sale  of  mortgaged  premises 236 

to  deed  of  slieriffi 241 

form  of,  general 278 

general  principles  of — 

uses  of. 27S(a) 

to  be  read  on  motions,  not  at  hearing 278(a) 

may  be  made  by  parties 278(a) 

personal  knowledge  in , 17(a),  (c),  278(a) 

residence  of  deponent  need  not  be  stated  in 278(a) 

as  to  venue  of 278(a) 

facts  only  to  be  stated  in 278(a) 

scandal  and  impertinence  in 278(a) 

how  written 278(a) 

signing  and  jurat  to 278(a) 

jurisdiction  of  officer  taking,  presumed 278(a) 

may  be  sworn  to  out  of  state 279,  n. 

to  be  regular  in  appearance 279,  n. 

taken  before  solicitor 279,  n. 

oaths  presumed  to  be  correct  and  legal 279,  n. 

service  of,  on  special  motion 279,  n. 

when  taken  on  notice 279,  n. 

to  be  filed  with  clerk 279,  n, 

on  rules  to  show  cause 279,  n. 

time  for  service  of  certain 279,  n. 

counter  affidavits  may  be  read 279,  n. 

habeas  corpus,  on — 

to  petition  for 478 

of  service  of  writ 479 

imbecility,  in  case  of 56(a) 

infant  defendant,  in  case  of — 

of  notice  to 51 

non-residence  of. 51 

of  age  of 54,  56 

subscribing  witnesses  to  petition  of. 54,  56 

in  forma  pauperis  — 

to  petition  of .  72 

injunction,  in  case  of — 

to  bill  for 16(6) 

petition  to  stay  waste  after  bill  filed 296 

decree 299 

in  partition 411 

interpleader,  of  non-collusion 484 

justification  of  surety  for  costs 71,  71(a) 


736  INDEX   TO   FORMS   AND    NOTES. 

Affidavits — ■ 

lunatic?,  idiots  and  drunkards —  page. 

to  petition  for  commission  for 640 

of  proof  of  lunacy 640 

to  petition  to  set  aside  inquisition 657 

of  guardian  of,  for  sale  of  lands 662 

mailing  notice  to  absent  defendant,  of. 31 

master's  summons,  service  of. 63 

motion,  service  of  notice  of. 275 

ne  exeat 1"1('^))  309 

new  execution,  to  petition  for 227,  228 

non-residence — 

common  form 23 

in  case  of  infant 51 

partition,  on — 

to  answer  on 112 

procure  injunction  on 411 

of  mastei-'s  sale  on 423 

advertisement  of  sale  by  posters 423 

in  newspaper 423 

to  master's  deed 428 

commissioner's  oath  on 441 

payment  of  money  into  court,  on  application  for,  on 137(a) 

perpetuating  testimony,  to  bill  for 493 

plea,  to 92,  96(o) 

publication  of  notice,  on — 

in  foreclosure  cases. 27(a) 

statute  on 25,  n.,  27(a) 

form  of 32 

order  of  publication,  on  — 

in  case  of  foreign  corporation 32,  n. 

production  of  papers,  on — 

to  petition —     76 

of  service  of  notice  for 77 

receiver,  in  case  of — 

of  mortgaged  premises 374(a) 

service  of  notice  of  application  for 535 

to  inventory  by 538 

account  of. 540 

reference  to  Vice  Chancellor,  on 165 

sale  of  infant's  land,  on — 

to  petition  for 670 

report  of  special  guardian  on 682 

sale  of  lands  limited  over,  on^ — 

to  petition  of  non-resident  guardian  on... 701 

scire  facias,  to  petition  of 324 

signature  of  infant,  by  witness 54 


INDEX   TO    POEMS   AND   NOTES.  737 

Affidavits—  page. 

solicitor  in  cause,  swearing  to  before ' 279,  n. 

special  motions,  on 166(6),  279,  n. 

strict  foreclosure,  of  default  on 397 

surplus  money,  to  account  of. 265 

witnesses — 

to  obtain  commission  for  foreign 147 

commissioner's  oath 151 

for  examination  of  domestic 158 

oath  of. 152,  163,  n. 

on  reference  to  Vice  Chancellor 165 

to  obtain  time  for  examination  of 166(a) 

Affirmation — 

by  commissioner 151(a) 

witness 15S(a) 

messenger 159,  n. 

form  of 152,  153,  163,  n. 

Agent — 

when  a  party 2(a) 

swearing  to  bill  by,  of  corporation 17(a) 

forms  of  swearing  to  bill  by 16,  17 

personal  knowledge  of. 17(f) 

Alimony — 

see  that  title  under  ''  Divorce,"  post. 

Me  exeat  upon  bill  for 14(a),  309(a) 

Alkcjata  et  probata — 

agreement  of. 8,  n. 

bill  may  be  amended  so  as'  to  agree  as  to 135(a) 

Alterations — 

in  answer  taken  before  commissioners 89,  n. 

to  be  resworn,  in  case  of 114,  n. 

in  bill 136,  n. 

Amendments — 

affidavit  of  mailing  notice,  of. 31(a) 

answer,  of — 

may  be  as  to  matters  of  form  or  substance 106,  n. 

discretion  of  court  on 106,  n. 

to  be  made  upon  petition  and  notice 106,  n. 

wlien  upon  affidavit 106,  n. 

not  to  set  up  usury 106,  n. 

in  case  of  supplementary  answer 100,  n. 

to  set  up  ultra  vires 106,  n. 

particular  cases  of. 106,  n. 

supplemental,  in  place  of 106,  n. 

uj)on  tlie  merits  of  the  case 106,  n. 

may  be  made  after  setting  down  for  hearing. 177((() 

2w 


738  INDEX   TO   FORMS   AND   NOTES. 

Amendments — 
bill,  of— 

general  principles—  page. 

in  case  of  omission  to  allege  lossof  instrument 8,  n. 

by  inserting  names  of  defendants  in  i)rayer 12(a) 

adding  signature  of  counsel 15(a) 

deemed  an  original  bill lS(a) 

is  a  waiver  of  process  for  contempt 37(a) 

when  impertinent 68(a) 

time  to  answer  extended  by 82,  n. 

by  waiving  oath  after  sworn  answer 114,  n. 

right  to  except  to  answer  waived  by 122,  n. 

after  answer  reported  insufficient 124,  n. 

on  submissions  to  exceptions 125(a) 

time  for  answering  after 125(a) 

by  striking  out 132(o) 

what  is  an  "amended  bill" 132(a) 

in  discretion  of  court 132(a) 

when  supplemental  bill  proper 133,  n. 

not  allowed  after  dismissal 133,  n. 

of  course 132(a),  133,  n. 

after  insufficient  answer 133,  n. 

when  on  payment  of  costs 133,  n. 

copy  of,  to  be  furnished  defendant 133,  n. 

to  be  on  notice 133,  n. 

making  a  new  case 134,  n. 

order  for  leave  for,  under  rule  135 

after  answer 135 

may  be  made  after  proofs  taken 135(a) 

at  tlie  hearing ....    135(a) 

after  hearing 135(a) 

trial  of  issue  at  law 135(o) 

to  make  bill  correspond  with  proofs 135(a) 

not  allowed  on  special  prayer ll(ct),  136,  n. 

when  costs  on  to  be  paid 136,  n. 

to  be  signed  by  counsel 136,  n. 

practice  in  case  of  irregularity 136,  n. 

by  drawing  line,  not  by  erasing 136,  n. 

how  to  be  served 136,  n. 

when  to  take  date 136,  n. 

new  subpoena  not  necessary 136,  n. 

answer  required  to 136,  n. 

of  charging  part,  to  avoid  plea  in  bar 143(a) 

discretionary  as  to  costs 143(a) 

proof  of  materiality  of. 144,  n. 

diligence 144,  n. 

to  be  on  special  motion 144,  n. 


INDEX   TO   FORMS   AND   NOTES.  739 

Amendments — 
bill,  of— 

general  principles —  page. 

when  to  be  made 132(a),  133,  n.,  135(a),  144,  n. 

as  to  prayers  for  relief. 343,  n. 

by  adding  facts 132(a),  343,  n. 

orders  on — 

for  leave  to,  after  demurrer 132 

plea 134 

and  withdraw  replication 134 

under  rule 135 

after  answer 135 

special  cases,  in  — 

answer,  in  case  of — 

right  to  except  to,  waived  by 122,  n. 

time  for,  after 125(a) 

after  insufficient 133,  n. 

order  for,  after 135 

what  parties  to  be  called  to 136,  n. 

to  be  filed 136,  n. 

demurrer,  in  case  of — 

after  allowance  of 90,  n. 

by  adding  parties 94(a) 

when  ma\'  be  of  course 94(a) 

costs  on 94(a) 

effect  of  amending  on 95(a) 

when  not  of  right  after 101(a) 

may  be  made  on  motion 101(«) 

after  partial 101(a) 

order  for,  after 132 

after  overruling 133,  n. 

in  discretion  of  court 134,  n. 

to  amended  bill...., 136,  n. 

when  allowed  after  general 343,  n. 

foreclosure  of  purchase-money  mortgage 33(),  n. 

injunction — 

on  omitting  special  prayer ll('i) 

practice  on 133,  n  ,  134,  n. 

second  amendment  of. 134,  n. 

omission  of  prayer  for  process  of. 13(c),  136,  n. 

ne  exeat,  in  case  of. 15,  n. 

parties,  as  to  — 

adding  next  friend  on  misjoinder 3(a) 

misjoinder  of  husband  and  wife 3(a) 

adding  next  friend  in  case  of  infant 4,  n. 

not  allowed  in  Court  of  Appeals  liy  adding...  136,  n. 
who  to  be  called  to  answer 136,  n. 


740  INDEX   TO   FORMS   AND   NOTES. 

Amendments — 
bill  of— 

special  cases,  in — 

parties,  as  to —  page. 

dismissal  of  bill  against  parties  not  retained..  136,  n. 

by  adding 132(a>,  133,  n.,  341,  n.,  343,  n. 

plea — 

eflect  of,  after  filing  of. 101(a) 

after  overruling  of. 133,  n. 

order  for,  after  allowance  of. 134 

replication — 

order  for  leave  to  withdraw,  and  amend 134 

method  of,  after  filing  of 134[a),  135,  n.,  143(a) 

after  filing  of. 144,  n. 

decree,  of — 

in  case  of  erroneous  order  of  sale 211(a) 

demurrer,  of — 

may  be  conditionally 12(a) 

narrowing  scope  of 91,  n. 

of  clerical  error  in 91,  n. 

by  stating  grounds 91,  n.,  93  n. 

substituting  new 91,  n.,  94(«) 

costs  on 91,  n.,  94(a) 

exceptions  of — 

leave  to,  after  hearing 124,  n. 

mailing  notice,  of  aflBdavit  of. 31(a) 

order  of  publication  after  sale 30(a) 

Answer — 

affidavit  to — 

by  husband  and  wife  in  partition 112 

common  form  of. 113 

by  agent  insufficient 113(a) 

how  taken  by  absent  defendant , 86(6),  113(a) 

effect  of  omission  of. 113(a) 

on  what  part  of  answer  to  be  written 113(a) 

where  there  are  several  defendants 113(a) 

oath  or  affirmation 113(a) 

before  whom  taken  out  of  the  state 113(a) 

venue  of. 113(6) 

jurat 113(6) 

where  to  be  signed  by  defendant  as  affidavit 113(c) 

certificate 113(c) 

and  how  signed  by  officer 113(d) 

by  particular  classes  of  persons 114,  n. 

husband  and  wife 114,  n. 

to  be  resworn  in  case  of  alteration 114,  n. 

sworn  to  before  filing 114,  n. 

when  defendant  is  ignorant  of  English  language 114,  n. 


INDEX   TO   FORMS   AND   NOTES.  741 

Answer — 

affidavit  to —  page. 

in  case  of  dissenting  defendant 114,  n. 

by  guardian  ad  litem 114 

when  clerk  of  court  is  guardian 114(«) 

jurat  to  answer  of  a  corporation...  115 

by  corporation  by  whom  and  how  sworn  to llo(a) 

see  also  "  commission  to  take,"  below. 

claiming  benefit  of  demurrer 109 

commencement  of — 

common  form  of 105 

by  infants  in  partition  suit  106 

commission  to  take — 

order  for 86 

affidavit  to  obtain 87,  n. 

extension  of  time  to  answer 87,  n. 

notice  on  application  for 87,  n. 

commissioners,  by  whom  named  and  number  of. ,  87,  n. 

how  issued  and  transmitted 87,  n. 

when  complainant  has  joined,  practice  on 87,  n. 

attendance  of  commissioners 87,  n. 

form  of 88 

oath  to  be  administered 88 

defendant,  how  to  be  sworn 88(6) 

signature  of  defendant  to  answer,  &c 88(6) 

certificate  of  commissioners  to 89 

alterations  in,  how  authenticated 89,  n. 

mode  of  verification  of 89,  n. 

return  of  with  answer,  time  of.... 89(a) 

mode  of  execution  by  commissioners 89(a) 

commissioners'  duty  under 87,  n.,  88(a),  89,  n.(a) 

conclusion  of 107 

death  of  defendant  before  filing,  effect  of 114,  n. 

demurrer,  answer  claiming  benefit  of 109 

defences  under — 

avoiding  deed  of  married  woman 104(cl!) 

mode  of  stating 105(6) 

number  of. 106,  n. 

to  be  set  up  fully  in 106,  n. 

usury  set  up  as  an  amendment 106,  n. 

ult7-a  vires  set  up  as  an  amendment  106,  n. 

litigated  title  in  foreclosure 107(6) 

mistake  in  deed 107(6) 

matters  in  avoidance 105(6),  107(6) 

same  benefit  of,  as  if  bill  demurred  to 109 

disclaimer  and — 

form  of 109 


742  INDEX   TO    FOEMS   AND   NOTES. 

Answer — 

disclaimer  and —  page. 

definition  of  and  practice  under 109(a),  110,  n. 

getting  rid  of,  when  and  how 110,  n. 

not  to  deprive  complainant  of  rights 110,  n.,  110(a) 

how  signed 110(a) 

evidence,  as — 

when  without  oath 10(a) 

in  case  of  infant 104(6) 

joint  answer  of  husband  and  wife 104(c) 

irresponsive  allegations 105(6) 

how  overcome 107(a) 

matters  in  avoidance 105(6),  107(6) 

on  motion  to  dissolve  injunction 114,  n. 

statute  on 115(6) 

in  case  of  corporation 120,  n.,  122,  n. 

on  hearing  on  bill  and  answer  174,  n. 

improbability  of  statements 174,  n. 

on  hearing  when  complainant  does  not  attend 174,  n. 

in  cases  of  divorce 455(a) 

extending  time  for — 

after  decree  pro  confesso 34(a),  35,  n.,  81(a) 

order  for 81)  86 

costs  on 34(a1,  35,  n.,  81(a),  82,  n. 

eflect  of  notice  of  motion  for 81(o) 

on  attachment 81(a) 

calculation  of  time 81(a) 

when  plea  or  demurrer  may  be  filed  under  81(a) 

after  frivolous  demurrer 81(«) 

refusal  after  plea  overruled 82,  n. 

effect  on  security  for  costs 82,  n. 

after  amendment  of  bill 82,  n. 

when  party  is  in  contempt 82,  n. 

costs  on 34(r(),  35,  n.,  81(a),  82,  n. 

order  for 86 

in  case  of  commission 87,  n. 

insufficiency 127(a),  (6),  128,  n. 

when  granted  ex  parte 86(a),  104(a) 

on  motion 81(a),  104(a) 

filing  of — 

after  extension  of  time 81(a) 

statute  as  to 104(a) 

if  due  on  a  holiday 104(a) 

guardian  ad  litem — 

infant  must  answer  by 53(a) 

title  of  answer  by 104,  105 

married  woman,  when  an  infant 104(6) 


INDEX   TO   FORMS   AND   NOTES.  743 

Answer  — 

guardian  ad  litem —  page. 

idiot  or  lunatic  must  answer  by 105(a) 

in  case  of  death,  practice  on  new  appointment 105(a) 

as  to  unsworn  answer  of. 363,  n. 

for  appointment  of,  see  "Guardian  ad  lilem,"  post. 

idiot  or  lunatic,  by — 

title  of. 105 

defence  by 105(a) 

infant,  by — 

title  of. 104 

effect  of. 104(6) 

defence  by 104(6) 

insufficiency  of — 

title  of,  in  case  of  insufficient  answer 105 

joint  answer — 

title  of. 104 

of  husband  and  wife 104(c) 

commencement  of. 105 

when  defendants  should  join 105(6) 

mode  of  answering — 

as  to  material  allegations  in  ihe  bill 105(6) 

interrogatories 10(a))  105(6) 

what  is  insufficient 105(6) 

as  to  particular  charges 105(6) 

defence  to  be  fully  stated 105(6) 

denial  of  an  unknown  fact •. 105(6) 

irresponsive  allegations  must  be  proved 105(6) 

untrue  statements,  when  peijury 105(6) 

matters  of  avoidance,  how  proved 105(6) 

as  to  immaterial  or  irrelevant  matters 106,  n. 

answer  tending  to  criminate 106,  n. 

may  state  more  than  one  defence  in 106,  n. 

defence  not  stated  in,  not  available  though  proved 106,  n. 

mortgagee,  by — 

answer  of  second 107 

effect  of  neglect  to  make 107(6) 

what  defences  may  not  be  set  up  in 107(6) 

setting  up  tender 345 

oath,  without — 

statute  as  to 10(a) 

order  to  take 80 

practice  as  to  consent  on  obtaining  order  to  take 80(6) 

liow  fur  evidence 10(a),  114,  n. 

partition,  in — 

form  of no 

verilicalion  of. 112 

short  form  of 112 


744  INDEX   TO   FORMS   AND   NOTES. 

Answer —  page. 

plea  and  answer  by  heir-at-law 98 

plea  standing  for — 

order  for , 103 

allowing 103(a) 

on  failure  to  amend,  with  liberty  to  except 103(^0 

exceptions  to,  when  to  be  filed 103(a) 

costs  on 103(o) 

effect  of  order  without  liberty  to  except 103(«) 

dissolution  of  injunction  on 103(a) 

proceedings  to  compel  an — 

common  order  to  answer 36 

order  on,  how  served 86(a) 

when  order  necessary 36(a) 

who  are  entitled  to  notice  of  order 37,  n. 

order  to  answer  or  that  an  attachment  issue 37 

uses  of  order 37(a) 

effect  of  amendment  of  bill  upon 37(a) 

accepting  or  replying  to  answer 37(a) 

may  be  had  against  married  woman 37(a) 

infant 37(a) 

lunatic 37(a) 

corporation , 37(a) 

husband  and  wife 37(a) 

guardian  ad  litem 37(a) 

how  enforced  against  a  corporation 37(a) 

order  of  attachment  on 38 

discretionary  on  attachment  in  38(a) 

writ  of  attachment 38 

when  writ  returnable 38(6) 

to  whom  writ  directed 38(6) 

rule  as  to  writ 38(6) 

when  sheriff  may  return  writ 38(6) 

how  many  writs  may  issue 38(6) 

at  whose  instance  writ  may  issue 38(6) 

return  of  sheriff  on  writ 38(6),  39,  n. 

alias  attachment 39,  39,  n. 

pluries  attachment 39 

attachments  with  itroclamation  and  commission  of  rebel- 
lion abolished 39(a) 

statute  as  to 39(a) 

bond  on  attachment 39 

rule  as  to  penal  sum  in  bond 39(6) 

rules  as  to  practice  on  return  of  attachment 39(6) 

refusal  to  answer  after  giving  bond 40,  n. 

when  clerk  to  enter  appearance 40,  n. 

order  for  alias  attachment 41 


INDEX   TO    FORMS   AND   NOTES.  745 

Answer — 

proceedings  (o  compel  an —  pac4e. 

order  for  leave  to  prosecnte  bond  at  law 41 

after  appearing  and  admitting  contempt 41 

for  commitment 41 

warrant  of  commitment 42 

sherift^s  return  to  warrant  of  commitment 42,  43 

order  for  a  sequestration 43 

when  sequestration  will  issue 43(a) 

efiect  of  discharge  under  insolvent  laws  on 43(a) 

writ  of  sequestration 43 

refusal  to  answer  — 

in  case  of  immaterial  or  irrelevant  matters 106,  n. 

matters  tending  to  criminate  or  forfeiture 106,  n. 

reswearing  to 114,  n. 

second  answer  — 

order  for 126 

statute  as  to 126(6) 

form  of 127 

costs  on 127(a) 

accepting,  not  a  waiver  of  costs  due 127(a) 

statute  as  to  tiling  further  answer 127(6) 

separate — 

by  married  woman — 

petition  for  leave  to  file  (two  forms) 82 

leave  of  court  to  be  first  had 82(a) 

may  be  suppressed,  if  without  leave 82(a) 

effect  of  not  answering  pursuant  to  order 82(a) 

who  may  apply  for 82(a) 

order  for 85 

suppressing,  filed  without  leave 86 

several  defendants — 

by  same  solicitor,  effect  of  when  unnecessary 105(6) 

signing  by  defendant — 

to  answer 113(c) 

and  disclaimer 110,  n  ,  110(a) 

supplemental  answer — 

when  necessary 106,  n. 

leave  to  file,  after  cause  set  down  fur  hearing 177(a) 

suppression  of — 

when  married  woman's  may  be 82(a) 

order  suppressing  married  woman's 86 

for  want  of  affidavit 1 13(o) 

third  answer — 

statute  as  to 127(a),  (6),  128,  n. 

no  furtlier  time  allowed  after 128,  n. 


746  INDEX   TO   FORMS   AND    NOTES. 

Answer — 

titles  of—  PAGE. 

by  an  infant 104,  104(6) 

a  single  defendant 104 

adults  and  infants  104 

husband  and  wife 104,  104(c) 

a  married  woman  separately 104,  104(d) 

lunatic  or  idiot,  &c 105,  105(a) 

in  case  of  an  insufficient  answer 105 

for  exceptions  to,  see  "  Exceptions  'to  answer'  "  post. 
Appeals- 
answer  to  petition  of— 

form  of 195 

when  to  be  filed 195(a) 

practice  on  default  in  filing ]95(a) 

argument  of — 

form  of  notice  of... 196 

when  to  be  served 196(o) 

filed 19fi(a) 

for  what  day  noticed 196(a) 

effect  of  non-appearance  at 196(o) 

solicitor  for  res^jondent  on 196(6) 

bill  of  revivor  for  purpose  of. 187,  n. 

constitutional  provisions  on 187,  n,  197(a) 

costs  on — 

deposit  to  answer  for 194(6) 

on  dismissal 195,  n. 

recovery  and  enforcement  of. 198(a) 

order  fur  execution  for,  on  affirmance 201 

discretionary - 201  («) 

to  include  expense  of  printing 201(a) 

death,  as  affecting — 

of  complainant  after  decree 187,  n. 

respondent  187,  n. 

decree  of  reversal — 

on  remittitur 199 

order  to  rectify  decree  below 199(a),  200,  n. 

efi'ect  of  decree  aSirmed  by  consent 200,  n. 

deposit  on — 

to  answer  for  costs 194(6) 

order  to  pay  over 201 

practice  on  repayment  of 201(6) 

dismissal  of 195,  n. 

eflfect  of 188,  n. 

execution,  pending  an — 

when  not  to  issue  without  order 188,  n. 

order  for,  notwithstanding  an 194 


INDEX   TO   FORMS    AND    NOTES.  747 

Appeals — 

execution,  pending  an  page. 

order  for,  when  discretionary 194(a) 

security  required,  when  granted 194(a) 

order  for,  for  costs  on  afBrmance 201 

grounds  of — 

statutes  on 186(6),  187,  n. 

in  case  of  injunctions  188,  n. 

appointment  of  receiver 188,  n. 

in  case  of  refusal  to  set  aside  sale 188,  n. 

process  for  contempt 188,  n. 

for  decree  rendered  in  absence  of  defendant 188,  n. 

when  decree  is  executed 188,  n. 

from  award  on  issue  at  law 245(a) 

determination  of  receiver 550 

statute  on 550(a) 

statement  in  petition ,...  551,  n. 

issue  on 551,  n. 

proofs  on 551,  n. 

hearing  of — 

procedure  at 196(6),  197,  n. 

Chancellor  not  to  sit  at 197(a) 

m/o?"ma  pawperis,  practice  on ...  ., 187,  n. 

injunction  continued  pending  an 194(a) 

insolvent  corporation  in  case  of. 550,  550(a),  551,  n. 

jurisdiction  lost  after  decree  and  remittitur 188,  n.,  198(a) 

notice  of — 

form  of 186 

when  to  be  made 187,  n. 

statement  of  order  or  decree  complained  of  in 188,  n. 

certificate  of  counsel 188 

signing  of,  by  counsel 188,  n. 

affidavit  of  service  of. 189 

practice  on  obtaining  and  serving 189(a) 

solicitor  of  respondent 189(a),  196(6) 

parties  to — 

not  to  be  added  by  amendment  on 136,  n. 

who  may  apjieal 186(6) 

infants,/eme  covert  or  insane 187,  n. 

corporation  may  be 187,  n, 

wlien  appellant  not  a  party  of  record 187,  n. 

"persons  aggrieved,"  who  are 187,  n. 

in  forma  pauperis 187,  n. 

bill  of  revivor  for  purpose  of. 187,  n. 

supplemental  bill  for  purpose  of 187,  n. 

petition  of — 

by  pauper 187,  n. 


748  INDEX    TO   FORMS   AND    NOTES. 

Appeals — 

petition  of —  page. 

form  of 194 

time  of  presenting ....187,  n.,  194(6) 

failure  to  present,  a  waiver 194(6) 

service  of. 194(6) 

contents  of. 194(6),  195,  n. 

from  determination  of  receiver , 550,  550(a),  651,  n. 

Prerogative  Court,  from 187,  n. 

printed  cases  and  briefs  on — 

form  of 197 

rules  as  to 197(a) 

what  to  contain 197(a) 

service  of 197(a) 

what  to  be  omitted  from 197(a) 

points  and  citations  197(a) 

quiet  title,  from  final  decree  on 621,  n. 

re-argument  on 188,  n. 

remittitur — 

on  affirmance 198 

definition  of. 198(a) 

recitals  in 198(a) 

duty  of  clerk  on 198(a) 

Court  of  Chancery  on 198(a) 

what  decree  is  made  on 198(a) 

jurisdiction  gone  after 188,  n.,  198(a) 

on  reversal 199 

decree  of  reversal  on,  in  chancery 199 

order  to  rectify  decree  below 199(a),  200,  n. 

efi'ect  of  decree  affirmed  by  consent 200,  u. 

practice  on,  affirming 200,  n. 

presenting 200,  n. 

proceedings  after  appeal  from  interlocutory  decree  200,  n. 

removal  of  cause  to  U.  S  Supreme  Court 198(a) 

revivor  on  — 

bill  of,  for  purpose  of. 187  n. 

abatement  before  appeal 315,  n. 

after  appeal 315,  n. 

service  of  papers  on 196(a) 

stay  on — 

when  appeal  taken  in  ten  days 188,  n. 

in  case  of  issue  at  law 252(a) 

from  interlocutory  decrees  — 

order  for 189 

not  per  se  a , 189(6) 

when  will  be  granted 189(c) 

on  accounting 189(c) 

presumption  on  application  for 189(c) 


INDEX   TO    FORMS   AND    NOTES.  749 

Appeals — 

summons  and  severance  on —  page. 

rule  to  show  cause  on 190 

practice  as  to  parties  on  appeal 190(a) 

allegation  of  death  of  party. 190(o) 

in  case  of  joint  judgment 190(«) 

time  allowed  to  assign  errors 190(o) 

separate  defence  against  joint  appellants 190(a) 

parties  defendant  in  error 190(a) 

effect  of  non-joinder  of  plaintiffs  in  error 190(a) 

practice  in  case  of  non-joinder  of  plaintiffs  in  error 190(a) 

rule  to  show  cause  in  (another  form  of) 191 

practice  in  New  Jersey  by  rule  and  not  by  summons 191(a) 

in  case  of  appeal  from  Prerogative  Court 191(o) 

chancery 191  (u) 

refusal  to  join , , 192 

order  of. 192 

writ  of  summons,  ancient  form 193,  193(a) 

supplemental  bill  for  purpose  of 187,  n. 

Appearance — 

by  attorney-general  for  the  state 13,  n. 

defendant 19,  n. 

solicitor „ 19,  n. 

effect  of  appearance 19,  n. 

in  divorce 21(6),  22,  n. 

right  to  make  decree  without 24(6) 

by  absent  defendant  after  decree 25,  n.,  26,  n. 

of  wife  by  husband 28(a) 

form  of. 35 

avoiding  decree  made  on  appearance  by  solicitor 35(a) 

entry  of,  without  authority '. 36,  n. 

authority  to  enter  may  be  disputed 36,  n. 

request  to  clerk  to  enter 36,  n. 

effect  of  subpoena  issued  before  bill,  waived  by 36,  n. 

in  case  of  supplemental  bill 36,  n. 

foreclosure 36,  n. 

entry  of,  after  contempt 39(6),  46(a),  46 

by  guardian  ad  litem  for  infant 52 

administrator  ad  prosequendum 60(a) 

on  ne  exeat 313(a) 

incase  of  abatement  and  revivor 316(a),  319(a),  321(a) 

by  clerk  for  infant 50,  n.,  348,  n. 

mpersedeas  on,  by  absent;  defendant 362,  n. 

by  infant  on  sale  of  land  limited  over 688 

Argument  of  ca.se  — 

sec  title  "  Hearing,"  post. 


750  INDEX    TO   FORM8   AND    NOTES. 

Assistance,  writ  of —  page. 

petition  for 204 

affidavit  to  petition 205 

notice  of  motion  for 208 

when  does  not  issue  of  course 208(a) 

form  of 209 

costs  on 209(a) 

Assumption  of  mortgage,  right  to  decree  for  deficiencj 579(a) 

Attachment — 

answer,  refusal  to,  for — 
bond  on  — 

form  of 39 

penal  sum  in 39(6) 

refusal  to  answer  after  giving 40,  n. 

order  for  leave  to  prosecute 41 

commitment  — 

order  for 41 

warrant  of. 42 

sherifi^'s  return  to  warrant  of 42,  43 

contempt,  for — 

amendment  of  bill  as  a  waiver  of. 37(a) 

acceptance  of  answer,  efiect  of  on 37(a) 

reply  or  motion  as  a  waiver  of. 37(o) 

statute  on  39(a) 

extension  of  time  as  aflecting 81(a) 

orders  in — 

to  answer  or  for  issuance  of. 37 

uses  of. 37(a) 

for  not  answering 38 

M'hen  discretionary 38(a) 

for  alias *. 41 

leave  to  prosecute  bond  at  law 41 

to  answer  after  appearance 41 

for  commitment 41 

on  third  insufficient  answer 128 

plea  or  demurrer  overruled,  after 102(a) 

statutes  on 37(a),  39(a) 

with  proclamation  abolished 39(a) 

writ  of — 

common  form 38 

practice  on 38(6) 

alias 39 

pluries 39 

return  of 38(6),  42,  43 

see  also  "Answer,  'proceedings  to  compel,'  "  ante. 


INDEX   TO   FORMS   AND    NOTES.  751 

Attachment  — 

violation  of  injunction,  for —  PAGE, 

answer  to  interrogatories  on — 

form  of 47 

how  to  be  made 47(6),  48,  n. 

appearance  to — 

form  of 46 

rules  as  to 46,  n.,  (a) 

costs  on 49(a) 

habeas  coTpua  to  produce  contemner 45(6) 

interrogatories  on — 

rule  for 47 

practice  on  obtaining  rule  for 47(a) 

form  of 47 

answer  to 47 

examination  of  witnesses  on 48,  n. 

settlement  of. 48,  n. 

order  convicting  defendant  on 48 

orders  on — 

to  show  cause 45 

for  attachment 45 

convicting  defendant 48 

writ  of — 

form 38 

requisites  of 45(6),  46,  n. 

see  also  "Injunction,  'contempt  for  violating,'"  post. 
Attorney — 

in  fact — 

suit  by,  to  be  joined  with  ci'stui  que  trust 2(a) 

oath  to  bill,  by 16,  17 

at  law — 

see  "Solicitor,"  post. 
Attorney -general — 

introduction  to  bill  by 6 

where  there  is  a  relator 7 

on  behalf  of  a  lunatic 7 

may  sue  on  behalf  of  lunatic 4(a),  7(a) 

prayer  for  process  in  bill  by 12 

service  of  process  on 13,  n.,  22(a) 

Attornment  to  receiver — 

direction  to  tenant  for 376(a) 

notice  to  tenant  for 540 

by  tenant 540 

Bills- 
constituent  parts  of — 
address  of — 

in  chancery 1 


752  INDEX   TO   FORMS   AND    NOTES. 

Bills- 
constituent  parts  oF — 

address  of—  page. 

when  ('liancellor  is  a  party l(^) 

of  petitions l(^) 

in  United  States  Circuit  Court 1,  1(c) 

County  Circuit  Court  in  foreclosure 2 

introduction — 

names  and  residences  of  complainants  in 2(a) 

effect  of  omission  of  complainant's  residence 2(a) 

practice  in  case  of  omission  of  residence 2(a) 

change  of  complainant's  residence  after  filing 2(a) 

general  form  of. 2 

in  Circuit  Courts  of  the  United  States 2 

by  husband  and  wife 2 

wife  suing  alone 2 

by  next  friend,  husband  defendant 3 

as  to  residence  of  wife  and  next  friend  in 3(a) 

by  infants  by  next  friend 3 

as  to  residence  of  infant  and  next  friend  in 4,  n. 

by  lunatic  by  guardian,  &c 4 

corporation -^ 

railroad  corporation 5 

foreign  corporation 5 

creditor  on  behalf  of  himself  and  others 5 

effect  of  omission  by  creditor  to  state  on  behalf,  &c..       5(6) 

what  creditors  may  not  unite 5(6) 

when  creditors  have  distinct  claims 5(6) 

by  executors  or  administrators 5 

attorney-general  on  behalf  of  the  state 6 

where  there  is  a  relator 7 

on  behalf  of  a  lunatic 7 

premises  or  stating  part — 

form  of ' 

necessary  allegations  by  administrator 5(c),  6,  n. 

executor  *3,  n. 

averments  of  facts  in 7(6) 

setting  out  evidence  in 7(6) 

English  rule  as  to  setting  out  evidence  in 7(6) 

facts  stated  when  sufhcient  for  relief  under  general 

prayer 7(6) 

misstatements,  when  not  fatal 7(6) 

may  be  without  precedent 7(6) 

allegata  to  agree  with  probata  8,  n. 

averment  as  to  lost  instrument  in 8,  n. 

technicality  not  required  in.. 8,  n. 

averments  by  assignee  of  mortgagee 8,  n. 

showing  legal  title 8,  n. 


INDEX   TO   FORMS    AND    NOTES.  753 

Bills- 
constituent  parts  of — 

premises  or  stating  part —  page. 

must  show  grounds  of  equity 8,  n. 

recovery  to  be  on  case  made  by  bill 8,  n. 

effect  of  immaterial  variance 8,  n. 

averments  claiming  benefit  of  statute 8,  n, 

substance  of  case  in 8,  n, 

facts  must  be  stated  or  cannot  be  proved 8,  n. 

general  statement  sufiicient 8,  n. 

in  what  part  of  bill  facts  to  be  stated 8,  n. 

facts  proved  but  not  pleaded 8,  n. 

allegations,  when  to  be  positive 8,  n. 

on  information,  Ac 8,  n. 

must  contain  facts  sufiicient  to  make  decree  on 9,  n, 

to  be  full  and  accurate 9,  n. 

plea  decided  by  averment  in 9,  n. 

failure  to  show  equity,  effect  of. 9,  u. 

make  a  case,  effect  of. 9,  n. 

degree  of  certainty  required 9,  n. 

rule  as  to  where  facts  to  be  stated 9(i) 

relief  granted  on  facts  stated 11(«))  361(a) 

charge  of  confederacy — 

abolished 9(a) 

charging  part  — 

form  of. 9 

uses  of. 9(6) 

allegations  in 9{6) 

perjury  in 9(6) 

defects  in ■ 9(6) 

whether  facts  to  be  alleged  in 9(6) 

jurisiliction  clause — 

form  of 9 

necessity  of. 9(c) 

interrogating  part  — 

validity  of  plea  not  decided  by 9,  n. 

form  of 10 

interrogatories  annexed  to  bill,  a  part  of 10(a) 

effect  of  omission  of. ]0(«) 

general  interrogatory 10(a) 

special  interrogatories 10(a) 

to  be  founded  on  allegation  in  1)111 10(a) 

statute  regarding 10(a) 

eflect  of  answer  without  oath 10(a) 

what  composed  of. 10(a) 

prayer  lor  general  relief — 

form  of 11 

necessity  for 11(«) 

2x 


754  INDEX   TO   FORMS   AND   NOTES. 

Bills  - 

constituent  parts  of — 

prayer  for  general  relief —  page. 

what  relief  granted  under 7(6),  11(a) 

relief  to  be  warranted  ))y  facts  stated 11('0 

prayer  for  special  relief  only 11(a) 

statement  of  facts  showing  right  to  relief. 11(a) 

claim  distinct  from  issue,  not  recoverable  under 11(a) 

in  case  of  injunction.., 11(a) 

when  relief  on  main  ground  denied 11(a) 

omission  of. 142(a) 

amendment  of. ll(a)>  136,  n.,  343,  n. 

in  case  of  receiver 372(a) 

prayer  for  process — 

general  form  of. 12 

to  call  for  all  parties  to  suit 12(a) 

effect  of  omission  of... 12(o) 

who  are  defendants  to  bill 12(a) 

practice  in  New  York.. 12(a) 

United  States  courts 12(a) 

amendment  of  omission  of. 12(a) 

when  the  United  States  or  the  state  is  a  party 12,  13(a) 

against  corporation  defendant 13 

statements  in,  against  defendant  corporation 13(6) 

for  injunction  and  subpcena 13 

subpana  to  be  taken  out  with  injunction 13(c) 

effect  of  filing  answei' 13(c) 

omission  of. 13(e) 

against  sheriff. 13(c) 

amendment  of  bill  by-inserting 136,  n. 

for  ne  e.real  and  subpcena 14 

when  not  prayed  for 15,  n. 

formal  execution  of — 
signing  of — 

where  complainant  sues  in  person 15 

by  a  private  person  or  corporation  through  solicitor,  15 

counsel...  15(o) 

firm  of  counsel  ....    15(a) 

effect  of  counsel  not  signing 15(a) 

by  solicitor  and  counsel 15(a) 

counsellor's  name,  without  consent 15(a) 

in  suits  in  propria  persona  counsel  need  not 15(a) 

amendment  in  case  of  omission  of. 15(o) 

counsel  to  read  before 15(a) 

by  private  person  sworn  to 15 

practice  on 15(6) 

corporation  sworn  to 16 

whom  signed  in  case  of  corporation 16(o) 

amended  bill 136,  n. 


INDEX   TO    FORMS    AND    NOTES.  755 

Bills- 
swearing  to —  PAGE. 

form  of,  by  complainant  in  person 16 

agent  or  attorney 16 

not  necessary  except  in  special  cases 16(6) 

special  affidavit  to  injunction  bill 16(6) 

in  case  of  lost  instruments 16(6) 

form  of,  by  corporation 17 

who  to  swear  to,  in  case  of  corporation 17(a) 

efl'ect  of  omission  to  sign  jurat 17(6) 

form  of,  by  an  attorney  in  fact 17,  17(c) 

by  person  having  knowledge  of  the  facts 17(c) 

writing  of — 

to  be  legibly  written ....  1(a) 

typewritten  copies  allowed 1(a) 

parties  to — 

when  Chancellor  is 1(6) 

complainants  to  be  all  named  in 2(a) 

real  person  in  interest  to  be 2(a) 

in  case  of  agent,  trustee  and  cestui  que  trust 2(a),  332,  n. 

husband  and  wife 3(a) 

having  adverse  interests  not  to  be  joined  as  complainants...  3(a) 

necessity  of  next  friend  for  married  woman 3(a) 

infants 4,  n. 

idiots  and  lunatics 4(«) 

creditor  on  behalf  of  class 5(6) 

administrators  and  executors 5(c),  6,  n. 

foreign  executors,  &c 6,  n. 

dissenting  administratrix 6,  n. 

the  state 6(h) 

attorney-general  on  behalf  of  a  lunatic 7(a) 

only  those  against  whom  process  is  prayed  are 12(a) 

amendment  in  case  of  omission  of. 12(") 

corporation  as 13(6) 

administrator  ad  prosequendum 57(a),  58{a),  60(a) 

poor  parties 72(a) 

practice  on — 

to  be  tiled  with  clerk  of  court 1('0 

as  of  the  time  received 1(") 

special  forms  of — 

(indexed  also  under  separate  heads,  which  see.) 

alimony,  for 468 

attaching  creditor  for  his  own  and  others'  benelit 521 

creditor,  by 512 

cross-bill 510 

discovery  for 496 


756  INDEX   TO   FORMS    AND    NOTES. 

Bills- 
special  forms  of — 

divorce,  of —  page. 

for  adultery 452 

to  annul  marriage 474 

dower,  for 622 

foreclosure,  of — 

short  form 326 

in  complicated  case 331 

strict  foreclosure 386 

against  infant 389 

insolvent  corporation,  against 529 

interpleader,  of. 480 

partition,  for 402 

perpetuate  testimony,  to 489 

quiet  title,  to 615 

redeem  mortgaged  premises,  to 377 

relief,  of — 

against  judgment  at  law......  oob 

for  cancellation  of  bond  and  mortgage  and  injunc- 
tion   566 

to  compel  payment  of  excess  of  mortgage  debt 576 

enforce  personal  liability  of  directors 580 

by  surety  to  compel  principal  to  pay  debt 588 

next  of  kin  for  distributive  share 594 

for  establishment  of  destroyed  will 602 

to  set  aside  conveyance  on  ground  of  fraud 606 

review,  of — 

for  errors  in  law '^09 

on  discovery  of  new  matter 510 

revivor,  of — 

revivor  and  supplement,  in  nature  of 504 

supplemental — 

in  case  of  new  matter 502 

parties 503 

Bonds- 
absent  defendants,  in  case  of — 

by  complainant  to  abide  decree  against ^-3,  n- 

attachment,  in — 

return  and  filing  of. o8(o) 

form  of 39 

penal  sum  in 39(6) 

order  for  leave  to  prosecute 41 

costs,  for — 

form  of '^ 

practice  on /0(a) 

justification  to "!>  "IC") 

distributee  to  executors,  by "1^ 


INDEX   TO   FORMS   AND    NOTES.  757 

Bonds- 
injunction,  on —  PAGE. 

on  ex  parte  allowance 301 

stay  of  ejectment  suit 302 

personal  action 303 

order  for  delivery  of,  for  prosecution 308 

ne  exeat,  on 

common  form  of 312 

to  obtain  a  discharge  of. 313 

payment  of  surplus  money,  on 272 

receiver,  of — 

of  mortgaged  premises 376 

insolvent  corporation 537 

sale  of  land,  on — 

by  guardian  of  lunatic 665 

infant 676 

approval  of,  by  master 677 

by  administrator  on  presumption  of  death 709 

Books,  production  of — 

see  "  Papers,  production  of,"  jmsL 

Briefs  on  appeal 197,  197(a) 

Capias  ad  satiafaciendum — 

form  of 242 

statute  on 242(a),  243,  n. 

Canceling  mortgage,  decree  for 634 

Caveat  against  enrolling  decree  — 

form  of 185 

practice  on  filing  of 185(a) 

Certificate — 

of  commissioners  to  take  answer 89 

counsel  to  demurrer 92 

plea 92,  96(a) 

in  form  of  affidavit 113(c) 

of  judge  on  trial  of  feigned  issue 250 

costs  for  searches , 327,  n. 

by  master  to  deed  on  partition 428 

surrogate  as  to  no  guardian 687 

Cestuis  que  trust  as  parties  with  trustees 2(«),  332,  n.,  341,  n.,  362,  n. 

Chancellor- 
form  of  address  to 1 

as  a  party l{b) 

process  against 1(6) 

Changing  conduct  of  cause — 

order  to  show  cause  on 139 

rule  of  court  on 139(a) 

object  of  rule 139(a) 

costs  on 139(a) 


758  INDEX    TO   FOEMS   AND   NOTES. 

Changing  conduct  of  cause  —  page. 

etiectof. 139(a) 

practice  in  case  of. 139(a) 

waiver  of  rights  under , 139(a) 

order  on 140 

Cliarging  part  of  bill — 

see  that  title  under  "  Bill,"  ante. 
Charge  of  confederacy — 

see  that  title  under  "  Bill,"  ante. 

Chattel  mortgages 333,  n. 

Circuit  Courts,  address  of  bill  in — 

of  the  United  States 1 

county 2 

Citation  in  divorce —    ^ 

form  of 21 

when  may  issue 21(6) 

defendant  to  answer 21(6) 

effect  of  acknowledgment  of  service  of. 21(6) 

mode  of  obtaining 21(6),  459(a) 

service  of,  with  copy  of  petition 21(6),  459(a) 

sherifi''s  endorsement  on 21(6),  459(a) 

service  of,  out  of  the  state 459(a) 

Commencements — 

of  answers 105,  106 

demurrers 89 

pleas , 96 

suit  in  chancery,  by  filing  bill 1 

Commission — 

answer,  to  take — 

order  for 86 

practice  on 86(6),  87,  n. 

form  of..,. 88,  88(a) 

oath  of  defendant  to 88,  88(6) 

certificate  of  commissioners  on.., 89 

return  of. 89(a) 

indexed  also  under  "Answer,"  ante. 
dower,  on — 

to  assign  and  set  out 627 

practice  on .• 627(a) 

examination  of  witnesses  for — 

see  that  title,  post. 
lunatics,  idiots  and  drunkards,  in  case  of — 

petition  for 638,  641,  642 

order  for 642 

form  of. 643,  646 

return  to 645 

notice  of  executing 647 


INDEX   TO    FORMS   AND   NOTES.  759 

Commission — 

lunatics,  idiots  and  drunkards,  in  case  of —  page. 

oath  to  juror  on 648 

subpoena  to  witness  on 648 

order  for  new 652 

indexed  also  under  "  Lunatics,  &c.,"  post. 
partition,  on — 

order  appointing  commissioners 437 

form  of 439 

oath  of  commissioners  on 441 

return  to 442 

indexed  also  under  "Partition,"  posL 

Compelling  defendant  to  answer 36-44 

indexed  also  under  "Answer,"  ante. 

Committee  of  lunatic,  suit  by 4(rt) 

Commitment — 

order  for 41 

warrant  of.. 42 

return  of  warrant  of. 42,  43 

on  refusal  to  produce  books    80(a) 

Concealment — 

of  infant  to  evade  service  of  process 20,  n. 

parties  defendant — 

form  of  affidavit 23,  23(6) 

order  of  publication  against 24,  24(a),  25,  n. 

mortgagor 27,  27(a) 

of  witness 169(6) 

Conclusions — 

of  answer 107 

demurrer 91 

plea 97 

Conduct  of  cause  by  defendant — 

order  to  show  cause  on 139 

rule  of  court  on 139(a) 

object  of  rule ]39(a) 

costs  on 139((() 

transfer  of  cause  from  complainant 139(a) 

practice  in  ca^e  of. 139(«) 

waiver  of  rights  under 139(a) 

order  absolute  to  proceed 140 

Consent — 

use  of  counsel's  name  without 15(a) 

appearance  by •>5(a),  36,  n. 

by  guardian  ad  litem 53,  53(a),  50 

to  answer  without  oatli 80(6) 

dismissal  of  bill  by,  costs  on 140(a) 

eflect  of  decree  by 181(a) 

of  wid(jw  to  join  in  sale  of  infant's  hnid 678 


760  INDEX   TO   FORMS   AND    NOTES. 

Constitution—  page. 

appeals  from  Orphans'  Court  to  Prerogative  Court 187,  n. 

Chancellor  not  to  sit  on  hearing  on  appeal 197(a) 

Contempt — 

technical  grounds  as  an  excuse  for 19,  n. 

waiver  of  process  for 3/(o) 

amending  bill  as  affecting 37(a) 

accepting  answer  or  replying,  efiect  of. 37(a) 

fine  for.. 3'Ka) 

examination  of  party  in 39(6) 

report  of  master  on 39(6) 

when  sheriff  is  in 39,  n. 

on  neglect  to  answer  after  giving  bail 40,  n. 

when  contemner  not  to  be  heard 40,  n. 

purging  from 40,  n. 

inability  to  pay  costs  as 40,  n. 

on  non-production  of  papers SO{a) 

by  married  woman  not  making  separate  answer 82(a) 

extension  of  time  to  answer  by  party  in 82,  n. 

on  failure  to  answer  after  plea  or  demurrer 102(a) 

bv  complainant  on  interrogatories  by  defendnnt 115(6) 

dismissal  of  bill  by  party  in 140(a) 

by  witness 157(a) 

appeal  from  process  for 188,  n. 

see  title  "Answer,  '  proceedings  to  compel.' "' 

"  Commitment."  ' 

"  Injunction,  '  contempt  for  violating.'  " 
Corporations — 

introduction  to  bill  by 5 

railroad 5 

foreign 5 

evidence  of  corporate  existence 5(o) 

prayer  for  process  against 13,  13(6) 

signing  bill  of,  by  solicitor 15 

when  sworn  to 1*^ 

by  officer  of. 16(a) 

swearing  to  bill  of. - 1')  l'(a) 

as  absent  defendants 32,  n.,  33,  n. 

distringas  and  sequestration  to  enforce  answer  of 37(a) 

defence  of  ultra  vires  in  amended  answer 106,  n. 

jurat  to  answer  of 115 

answer  by 115(a) 

discovery  by 115(a) 

see  also  "Absent  defendants." 

"  Insolvent  corporations." 
Costs — 

administration  ad  prosequendum,  on •••     60^a) 


INDEX   TO   FORMS   AND   NOTES.  761 

Costs  - 

answer,  on —  page. 

utter  pro  confesso  on  payment  of. 34(a) 

on  time  granted  for,  without  notice 8L(a) 

plea  standing  for 103(a) 

unnecessary  separate 105(6) 

double 127(a) 

acceptance  of  furtlier,  not  a  waiver 127(o) 

after  third  insufficient 128,  n. 

treble 128,  n. 

appeal,  on — 

deposit  on,  to  answer  for 194(6) 

on  dismissal  of. 195,  n. 

failure  of  appellant  to  appear 196(a) 

enforcement  of,  on 198(«) 

discretionary  on 201(a) 

practice  as  to 198(a),  201(a) 

of  printing  on 198(a),  201(a) 

order  for  execution  for 201 

to  pay  over  deposit  on 201 

return  of  deposit  on 201(6) 

application  of  deposit  on,  lo  payment  of  prior 201(6) 

bill,  on— 

amendment  of,  on  allowance  of  demurrer,  with 101(a) 

without 124,  n  ,  132(a) 

after  demurrer 94(«),  133,  n. 

before  answer,  &c 133,  n. 

after  insufficient  answer 133,  n. 

plea,  Ac,  overruled 133,  n. 

on  leave 133,  n. 

without,  to  furnisli  copy 133,  n. 

time  of  payment  of. 136,  n. 

discretionary  as  to 143(a) 

on  dismissal  of,  on  motion 90,  n. 

for  failure  to  answer  interrogatories  115(6) 

by  complainant 140(rt) 

for  failure  to  set  down  cause 118(6),  141(6) 

want  of  prosecution 142(a) 

non-attendance 111(6),  171('0,  174,  n  ,  182(a) 

contempt,  on — 

party  in,  lo  stand  committed  until  payment  of 39(a) 

not  to  be  heard  until  jiayraent  of. 40,  n. 

inability  to  pay  as  an  excuse  for 40,  n. 

discharge  in  insolvency  as  relief  i'rom  payment 43(a) 

from  attachment  for,  with 47(a) 

on  attachment  for 49(a) 

time  to  answer  by  i)arly  in  ". 82,  n. 


762  INDEX   TO   FORMS   AND    NOTES. 

Costs — 

creditor's  bill,  on —  page, 

indemnity  for,  by  co-complainant  in 528(a) 

decree,  on — 

absent  defendants  appearing  after,  security  for 26,  n. 

relief  after  pro  con/esso  on  payment  of. 35,  n. 

on  opening 35,  n. 

after  opening  pro  confesw  to  abide  event 35,  n. 

on  enrollment  of 141(a) 

to  include  subsequent 180(c) 

waiver  of  objection  to  award  of,  in 181,  n. 

changing  award  of,  in 181,  n. 

with  liberty  reserved 181(a) 

demurrer,  on — 

discretionary  power  as  to 90,  n.,  91,  n. 

on  withdrawal 94,  n. 

filing  new 94,  n. 

discovery,  on — 

amount  due,  exclusive  of. 496(6),  497,  n. 

when  no  costs  awarded  on 497,  n. 

divorce,  on — 

in  case  of  poor  persons 454,  n. 

cou.nsel  fee  in .465(a),  469,  n. 

dower,  in  case  of 626(6) 

exceptions,  on — 

for  scandal  in  bill 67(a) 

on  allowance  of. — .     67(a) 

reference  to  master  on 67(a) 

submission  to 61(a),  121,  n.,  125(a) 

overruling 130(a),  131,  n. 

allowance  of,  in  part 67(a),  131,  n. 

execution  for — 

on  proceedings  for  possession 209(a) 

against  lands  and  goods  for 214 

when  issued  and  practice  on 180(6),  214(a) 

on  decree  for  payment  of  money 216(a) 

foreclosure,  en — 

on  drawing  tickets  in 22(6) 

not  allowed  on  affidavit  of  .service  of  ticket 22(6) 

in  case  of  defendant  mortgagee 107(6) 

on  neglect  to  proceed  in 139(a) 

payment  of,  by  defendant  proceeding 139(a) 

on  decree  for  deficiency 223,  n. 

decree  for 326(a) 

for  certificates  of  search  on .*. 327,  n. 

on  drawing  bill  for 336,  n. 

in  case  of  one  bill  for  two  mortgages 336,  n. 


INDEX   TO    FORMS   AND   NOTES.  763 

Costs — 

foreclosure,  on —  page. 

effect  of  tender  on '. ,  345(6) 

in  case  of  sale  on,  money  not  all  due 350(a) 

hearing,  on — 

on  not  bringing  on  cause  after  notice  172(a) 

ordering  off". 172(a) 

postponement  of.. 175,  n. 

standing  over  at,  to  add  parties 176(6) 

injunction,  on — 

to  stay  proceedings  at  law  before  verdict 293,ii. 

injunction  master 300(a) 

stay  proceedings  in  ejectment 302(a) 

at  law  after  verdict 303(o) 

insolvent  corporation,  in  case  of — 

distribution  after  payment  of. 535(o) 

interpleader,  on — 

on  decretal  order  in 486,  n. 

dispute 486,  n. 

counsel  fee  on 486(a) 

liability  for — 

residence  of  complainant  to  be  stated  to  fix 2(a) 

in  case  of  infant  or  non  compos 4,  n. 

infant's  bill  without  next  friend,  solicitor's 4,  n. 

on  infant's  bill  tiled  as  adult 4,  n. 

guardian's  or  next  friend's 4,  n. 

relator's 6(o) 

in  suits  against  the  state 7,  n. 

lunatics,  idiots  and  drunkards,  in  case  of — 

in  case  of  petition  presented  by  wife 640,  n. 

of  jurors  on  inquiry 645(a) 

commissioners 645(a) 

clerk  to  tax,  on  filing  of  decree 654(a) 

motion,  on — 

on  party's  own  mistake 276,  n. 

usually  granted  on 276,  n. 

for  neglect  to  proceed  after  notice  of. 276(a) 

partition,  in — 

master's  fees  on 413,  n. 

discontinuance  of,  on  payment  of. 421(a) 

distribution  in,  after  deducting 428(a) 

on  refunding  bonds  in 432,  n. 

to  be  charged  to  shares  on 442(a) 

preferred  to  lien 442(a) 

commissioner's  fees  on 444(6) 

for  searches  on ,. 447(a) 

counsel  fee  on 447(a) 


764  INDEX   TO   FORMS   AND   NOTES. 

Costs- 
perpetuating  testimony,  on —  page. 

on  plaintiff's  neglect  to  proceed 494,  n. 

plea,  on — 

on  benefit  of,  reserved 101,  n. 

standing  for  answer 103(a) 

]ioor  })ersons,  in  case  of — 

not  required  to  pay '^^('^O 

on  divorce  of 454,  n. 

quieting  title,  on — 

in  case  of  decree /""o  cow/p.s<o 620(o) 

to  answering  defendant 620(a) 

redemption  of  mortgaged  premises,  on  — 

on  ejectment 346,  n. 

payment  of,  in  case  of 378,  n.,  384(«) 

on  dismissal  of  bill  for 384(a) 

rehearing,  on 186(o) 

replication,  on — 

on  filing  of 144,  n. 

permission  to  file 174,  n. 

sale  of  land,  on — 

on  adjournment  of 230(a) 

sheriff's  statement  of,  on 233,  233(a),  234(a)  to  (i) 

enforcement  of,  in  case  of 242(o) 

in  case  of  resale 253(a) 

death  presumed,  on — 

recoverable,  on  return  of  paity 703(a) 

distribution  of  proceeds  of,  after  payment  of 703(6) 

infant's  land — 

payment  to  guardian  after  deducting ...  681(6) 

limited  over — 

to  be  taxed  and  paid  out  of  proceeds  of 693(a) 

lunatics,  &c. — 

investment  of  proceeds  of,  after  payment  of 666(fl) 

stay  until  payment  of,  in  former  suit 214(a) 

strict  foreclosure,  decree  against  infant  on  payment  of 3S9(a) 

witnesses,  examination  of,  by  cniumission — 

as  to  part}'  requiring 149(a) 

of  stenographer  on 162,  n. 

exhibits  on 162,  n. 

on  paging,  &c.,  of  deposition 163,  n. 

as. to  fees  of  examiners  on 163,  n. 

on  notice  of  appeal  from  examiner 164,  n. 

see  also  "  Security  for  costs,"  potil. 
Creditor's  bill — 
bill,  the— 

introduction  to ^ 


INDEX   TO   FORMS   AND   NOTES.  765 

Creditor's  bill — 

bill,  the—  PAGE. 

to  set  aside  fraudulent  conveyance  and  establish  lien 512 

what  must  be  shown  by 512(a),  513,  n. 

necessary  statements  in 5(6),  512(a),  513,  n. 

by  attaching  creditor  for  himself  and  others 521 

averments  in,  by  attaching  creditor 521(a) 

supplemental,  when  allowed 521(a) 

decree  on — 

by  default 35^  n. 

when  several  suits  pending 513,  n. 

form  of 519 

distribution  of  assets  on 528(a) 

execution  in  case  of — 

before  filing,  advantage  of 513,  n. 

out  of  chancery 520(a) 

money  in  hands  of  sheriff'  may  be  levied  on 525(a) 

judgment  creditor,  how  affected  by 521(a) 

jurisdiction  of  equity  over 512(a) 

lien  necessary 513,  n.,  521(a) 

Us  pendens — 

notice  of. 517 

statutes  as  to 517(a),  518,  n.,  519,  n. 

when  takes  effect 519  n. 

no  bill  filed 519,  n. 

effect  of  conveyance  after 519,  n. 

parties — 

effect  on  creditor  omitted  as 521(a) 

who  may  be 5(6),  512(a),  521(a),  527(a) 

admission  of — 

petition  for 527 

time  of  making 527(a) 

when  notice  of  application  for,  required 527(a),  528  n. 

order  on 528 

rights  of. 528(a) 

receiver's  notice  of  motion  for 519 

stay  when  several  feuits  pending 528,  n. 

Cross-bill — 

answer  to 130,  n. 

for  relief  in  case  of  mistake  in  mortgage  on  foreclosure 334(a) 

against  co-defendant 334(a) 

positive  relief. 336,  n. 

definition  of 510 

for  relief  or  discovery 75,  n.,  510(a) 

when  to  be  filed 510(a) 

practice  after  replication 510(a) 

may  be  filed  after  close  of  testimony 510(a) 


766  INDEX   TO   FORMS   AND   NOTES. 

Cross.bill—  P^GE. 

new  parties  not  to  be  introduced  by 510(a) 

not  to  be  inconsistent  with  original 510(a) 

against  co-defendant 510(a) 

answer  to 136,  n.,  510(a),  511,  n. 

practice  as  to,  under  rule  of  court 511,  n. 

order  to  stay  proceedings  until  answer  to 511 

must  be  verified  to  stay  proceedings 511(a) 

does  not  operate  as  a  stay  of  course 511(a) 

practice  on,  as  to  stay 511(a) 

order  that  original  and  cross-bill  be  heard 511 

original  and  cross-cavise  one  suit  511(o) 

reformation  of  mortgage  by 636(a) 

Curtesy — 

see  "  Dower  and  curtesy,"  jiost. 
Death— 

of  guardian 105(a) 

defendant  before  answer  filed 114,  n. 

witness l^")  '^^* 

party  after  argument  and  before  decree 179(c) 

complainant  after  decree 187,  n. 

respondent  in  appeal 187,  n. 

sheriff' or  officer  pending  execution 226(a) 

solicitor 281(6) 

party  entitled  to  notice  of  new  party 284,  n. 

presumption  of. 703(a),  704,  n. 

of  trustee 720(6) 

see  also  "Abatement  and  revivor." 
"Absent  defendants." 
"Distribution  of  personal  property." 
"New  trustee." 

"  Sale  of  land  on  presumption  of  death." 
Decrees — 

abstract  of. 222 

indexed  also  under  "Abstract  of  decree,"  ante. 

final — 

caveat  against  enrolling 185 

common  form — 

in  ordinary  cases 1'8 

absence  of  complainant 182 

entering — 

nunc  pro  tunc 17J(c) 

in  case  of  loss  of  original 180,  n. 

rule  of  court  as  to  time  of 180(c) 

by  agreement  of  parties 362,  n. 

execution  on  — 

for  costs 180(6) 

in  case  of  appeal 188,  n. 


INDEX   TO   FOEMS   AND   NOTES.  767 

Decrees  — 

practice  and  principles  applicable  to—  page. 

in  case  of  absent  defendants 24(6) 

creditor's  bills 35  n_ 

definition  of 178(5)^  179'^^ 

objection  to,  bow  waived I79  jj_ 

recitals  in j-g\^^ 

declaration  of  rights  of  parties  in 179(6) 

,  in  case  of  death  before  signing 179(c) 

by  Chancellor  on  opinion  of  predecessor 180  n. 

signing  of,  by  Chancellor's  successor 180,  n. 

may  be  made  in  vacation 180  n. 

not  to  be  in  figures 180(a) 

reservation  of  further  consideration  in 180(c) 

when  equities  settled  by  interlocutory 180(c) 

equity  reserved 18]  n. 

waiver  of  objection  to 181  n. 

settling  form  of. 181  n. 

when  to  be  enforced 181  n. 

■with  liberty  reserved 181(a) 

consent  to,  as  settlement  of  rights 181(rt) 

time  for  performance  of. 181(6) 

effect  of,  as  a  conveyance 182  n. 

amendment  of 211(o) 

in  case  of  collateral  security  for  less  than  mortgage 362,  n. 

operation  of. ....222(a),  362^  n. 

pro  confesso — 

against  absent  defendants 25  n, 

form 34 

when  may  be  entered 34(a) 

in  case  of  divorce 34(a) 

signing  of. si{a) 

rule  as  to  notice  on 34(a) 

when  proof  required  on 3.5  n. 

final  in  lieu  of. 35  ^ 

riglit  to,  when  answer  on  file 35  n. 

relief  against 35^  „. 

costs  on  oj)ening 35  ,i_ 

opening 34(a)^  35^  n.^  81(«) 

leave  to  answer  on  same  day  with 34(«),  81(a) 

on  third  insufficient  answer 130 

foreclosure 35O 

special  forms  of,  final — 

annul  a  deed,  to 633 

cancel  a  mortgage,  to 634 

creditor's  bill  to  set  aside  conveyance,  on 519 


768  INDEX   TO    FORMS   AND   NOTES. 

Decrees — 

special  forms  of,  final — 

divorce,  on —  page. 

in  ex  parie  proceedings 463 

for  alimony 473 

nullity  of  marriage 476 

dower,  for 625 

establish  a  will,  to 632,  632(a) 

foreclosure,  on — 

on  no  order  of  reference 353 

for  sale  of  whole  premises 361 

part  of  premises 364 

money  not  due 365 

residue 367 

special,  in  favor  of  complainants  and  defendants...  368 
strict — 

form  for 387 

final 399 

interpleader,  in 487 

mortgage  declared  usurious,  on 637 

partition,  on — 

for  partition  and  appointing  commissioners 437 

confirming 445 

quiet  title,  to 620 

redemption  of  mortgaged  premises,  for 384 

reform  a  mortgage  so  as  to  convey  a  fee,  to 635 

a  trust  deed,  to 636 

reversal  on  remittitur,  on 199 

specific  performance,  for 630 

special  forms  of  interlocutory — 

account  between  partners,  for 627 

compelling  second  mortgagee  to  redeem 628 

interpleader,  on 485 

partition,  in 412 

mortgage  foreclosure,  on 34( 

strict  foreclosure,  on 393 

Decretal  order — 

retaining  bill  with  leave  to  bring  action 177 

■  see  also  "  Decrees,"  supra. 
"  Orders,"  post. 
Demurrer — 

constituent  parts  of — 

title  and  commencement  of. 89 

conclusion  of. 91 

affidavit  to — 

form 92 

efiect  of  omission  of. 92(«) 


INDEX  TO   FORMS   AND   NOTES.  769 

Demurrer — 

constituent  parts  of — 

certificate  of  counsel  to —  page. 

form 92 

effect  of  omission  of. 92(a) 

forms  of — 

for  want  of  equity 92 

multifariousness 93 

want  of  parties 94 

affidavit,  &c.,  in  interpleader. 94 

not  showing  claim,  &c.,  in  interpleader 95 

demurrer  and  answer 95 

answer  claiming  benefit  of. 109 

grounds  of — 

for  omitting  residence  of  complainant 2(a) 

defect  in  interrogating  part 10(a) 

omission  of  prayer  for  process 12(a) 

want  of  counsel's  signature 15(a) 

to  original  bill 90,  n. 

bill  of  discovery 90,  n. 

for  misjoinder  of  parties 91,  n. 

want  of  equity 92 

must  rest  upon  objections  to  the  bill 92(6) 

for  want  of  form 93,  n. 

stating,  by  way  of  amendment 93,  n. 

for  misjoinder  of  causes 93,  n. 

in  case  demurrant  not  a  necessary  party 93,  n. 

statement  of. - 93,  n. 

for  multifariousness 93 

what  constitutes  multifariousness 93(o) 

for  misjoinder  of  husband  and  wife 93(a) 

want  of  parties  94 

statement  in,  for  want  of  parties 94(a) 

in  case  of  no  ticket  with  subpwna 94(a) 

bill  by  foreign  executor 332,  n. 

interpleader,  to — 

fur  want  of  affidavit  and  equity 94 

not  showing  claim  of  right  in  defendant 95 

in  case  bill  admits  debt  due  one  defendant 480(a) 

of  bill  of,  after  judgment  at  law 4S0(a) 

omission  of  offer  to  pay  into  court 480(a) 

objection  to  want  and  form  of  affidavit  in 484(a) 

orders  on — 

sustaining 101 

for  time  to  file,  to  amended  bill 102 

overruling  on  default 102 

argument 102 

2y 


770  INDEX   TO   FORMS   AND   NOTES. 

Demurrer — 

ore  tenus —  pagk. 

at  heariDg  after  overruling  in  doubtful  cases 90,  n. 

for  misjoinder 93,  n. 

want  of  equity ...  93(«) 

assignment  of  causes 94(a) 

practice  on — 

objection  to  bill  under  rule 89(6) 

on  overruling  in  doubtful  cases 90,  n. 

decision  on 90,  n. 

effect  of  allowance  of. 90,  n. 

at  the  hearing 90,  n.,  91,  n. 

to  what  matter's  argument  confined 91,  n. 

amendment  of 91,  n. 

answer  on  overruling 91,  n. 

filing  of,  as  a  waiver 91,  n. 

time  of  filing 92(a) 

noticing  and  setting  down 92(rt) 

after  time  extended 81(a),  92(«) 

leave  to  amend  by  stating  grounds 93,  n. 

file  new 94(a) 

withdrawal  of 94(a) 

to  be  first  disposed  of 9o(a) 

hearing  on 95(o) 

admitting  sufficiency  of 95(a) 

order  sustaining 101 

effect  of  allowance  of 101(a) 

in  case  of  partial 101(a) 

costs  on 90,  n.,  91,  n.,  94(a),  101(a) 

order  overruling,  on  default 102 

argument 102 

leave  to  put,  in  after  plea  overruled 102(a) 

answer  to  be  put  in  on  overruling 102(a) 

princijiles  governing — 

lies  to  bill  only 89(6) 

as  a  protection  from  discovery 89(6) 

decision  on 90,  n. 

admission  of  facts  by 91,  n. 

eflect  of  general,  as  a  waiver 91,  n. 

in  case  part  of  bill  demurrable 91,  n. 

to  show  cause  for,  on  face  of  bill 92(6) 

amended  bill 136,  n. 

bill  of  review 508(o) 

and  answer 95 

claiming  benefit  of,  in  answer 109 

Demurrer  and  answer 95 

Depositions — 

see  "  Examination  of  witnesses,"  post. 


INDEX  TO   FORMS   AND   NOTES.  771 

Deputy  sheriff —  PAGE. 

authorization  of. 21 

mode  of  appointing 21(a),  213(a) 

deed  executed  by 240(a) 

Diligence — 

what  constitutes,  on  inquiry 31(a),  32,  n. 

Disclaimer — 

form  of 109 

when  used 109(a) 

to  be  with  answer 109(a) 

on  oath 110,  n. 

getting  rid  of. 110,  n. 

effect  of. 110,  n. 

how  to  be  signed HO,  n.,  llO(o) 

Discontinuance — 

in  partition 421(a) 

see  "Dismissal  of  bill,"  post. 

Discovery — 

bill  for 496 

definition  of. 496(a) 

statements  in  bill  for 496(o) 

prayers  in  bill  for 496(a) 

answer  to  bill  for , 496(a) 

parties  to 497,  n. 

relief  granted 497,  n. 

receiver  in  case  of 497,  n.,  498,  n. 

in  case  of  unsatisfied  judgment  at  law 496(6),  497,  n.,  498,  n. 

statutes  on 496(6),  497,  n.,  498,  n. 

procedure  on .....497,  n.,  498,  n. 

affidavit  to  bill  of. 500 

order  for 501 

Dismissal  of  bill — 

misjoinder  of  husband  and  wife  not  a  cause  for 3(a) 

in  case  of  infant  without  next  friend 4,  n. 

next  friend  without  authority 4(a) 

for  want  of  interest  between  complainants 5(6) 

no  ground  of  equity  on  motion 62,  n, 

failure  to  file  security  for  costs 71,  n. 

refusal  to  answer  interrogatories 115(6) 

on  failure  to  speed  cause 118(6) 

as  to  parties  not  retained  on  amendment 136,  n. 

order  for,  by  complainant 140 

when  complainant  may  have 140(a) 

costs  on 140(a) 

as  of  course 140(«) 

when  on  notice  and  motion 140(a) 

on  non-a])pearance  of  defendant  after  notice 1  i0(a) 


772  INDEX   TO   FORMS   AND   NOTES. 

Dismissal  of  bill —  page. 

eftect  of  voluntary 141(a) 

when  pleadable  in  bar 141(a) 

for  want  of  parties 141(a) 

gross  negligence 141(a) 

vacating  order  for 141(a) 

on  agreement 141(a) 

notice  of  motion  for,  for  want  of  prosecution 141 

for  failure  to  file  exceptions  to  answer 141(6) 

replication 141(6) 

set  down  cause 118(6),  141(6) 

attend  at  hearing 141(6),  142,  n..  171(a),  174,  n. 

on  court's  own  motion 141(a),  142,  n. 

motion  for,  by  one  of  joint  defendants  142  n. 

for  abandonment  of  suit 142(a) 

not  without  full  hearing 142(a) 

for  want  of  equity 142(a) 

in  case  of  no  relief  prayed  against  defendant 142(a) 

for  want  of  prosecution  pending  injunction 142(a) 

in  case  of  bill  to  perpetuate  testimony 142(a) 

for  want  of  prosecution,  eflfect  of 142(a) 

after  order  to  amend 142(o) 

on  application  of  party  without  process  served 143,  n. 

conclusiveness  of. 141(a),  143,  n. 

setting  aside  decree  for 143,  n. 

when  motion  for,  irregular 143,  n. 

filing  of  replication  to  prevent 144,  n. 

want  of  parties  as  a  ground  for 176(6) 

for  failure  to  elect  between  suit  and  action l-17(o),  280,  n. 

of  complainant  to  appoint  a  solicitor 282 

when  answer  denies  matter  of  discovery 496(o) 

Dissolution  of  injunction — 

see  "  Injunctions,"  post. 
Distribution  of  personal  property — 

presumption  of  death,  in  case  of — 

statute  on 713(a),  714,  n. 

petition  for 713 

order  of  reference  on 71o 

report  of  master  on 715 

bond  from  distributee  to  executors 718 

order  of  distribution  to  legatees  in  remainder 719 

Distringas  to  compel  corporation  to  answer 37(a) 

Divorce — 

affidavits,  on — 

of  non-collusion. 454 

answer  sworn  to,  used  as 455(a) 

statute  regarding 452(a),  457(a) 


INDEX   TO   FORMS   AND   NOTES.  773 

Divorce — 

affidavits,  on —  page. 

of  non-residence  of  defendant 459(a) 

to  petition  for  sdimony  pendente  lite 467 

alimony — 

ne  exeat  on  bill  for 14(a) 

petition  ior,  pendente  lite 465 

discretion  of  court  on  allowance  of 465(a) 

when  will  be  granted 465(a) 

affidavit  to  petition  for 467 

denial  of  adultery  in  petition  for....' 467(a) 

order  of  reference  for 467 

allowance  of,  with  or  without  reference 467(6) 

order  for 467 

poverty  as  a  defence  to 468,  n. 

bill  for,  under  the  statute 468 

sta,tute  on 468(a) 

as  a  lien 469,  n. 

security  for 468(a),  469,  n. 

power  of  court  to  decree.. 469,  n. 

when  will  be  refused...  465(a),  466,  n.,  469,  n. 

necessary  averments  in  bill  for 469,  n. 

proof  on 469,  n. 

when  no  divorce  granted 469,  n. 

order  for  security  for  costs  on 473 

statute  as  to  security  for  costs  on 473(a) 

decree  for > 473 

not  given  in  gross  sum 473(6) 

petition  for  alteration  in  allowance  of. 473(6) 

amount  of. 467(6),  (c),  468,  n.,  473(6) 

answer  — 

to  bill  of  divorce  for  adultery 455 

not  evidence 455(a) 

time  of  filing 455(a) 

issue  joined  on  filing  of. 455(a) 

not  to  be  under  oath 459(6),  467(a) 

bill  for— 

in  case  of  adultery 452 

necessary  averments  in,  as  to  adultery 453(a) 

when  suit  must  be  commenced  by 453(a) 

improper  joinder  of  grounds  in 453(a) 

prayer  for  independent  relief  in 454,  n. 

alimony  in 454,  n. 

in  case  of  alimony 468 

averments  in  bill  for  alimony 469,  n. 

to  annul  marriage 474 


774  INDEX   TO   FORMS   AND   NOTES. 

Divorce — 

citation —  PAGE. 

form  of 21 

acknowledgment  of  service  of 21(6) 

proof  of  service  of. 22,  n. 

service  of,  in  case  of  non-residence 459(a) 

issuing  and  service  of. 21(6),  459(a) 

cohabitation  pending  suit 452(o),  474(6) 

collusion  in 463(a),  475(a) 

condonation  as  a  bar 456(a) 

conscientious  scruples,  as  to  absolute 464(o) 

decree — 

on  ex  parte  proceedings 463 

practice  on  ex  parte  proceedings 463(a) 

for  separation  and  alimony 473 

nullity  of  marriage 476 

desertion — 

proof  of. 460(a) 

what  constitutes 452(a),  457(6),  458,  n.,  460(o),  461,  n. 

dower  and  curtesy  forfeited  by 464(a) 

evidence  in — 

sworn  answer  not 455(a) 

time  and  mode  of  taking 455(a),  459(6),  461,  n. 

to  be  taken  before  one  master 461,  n. 

in  case  of  adultery 462(a),  463,  n. 

grounds  for — 

in  case  of  another  husband  or  wife  living 452(a) 

when  parties  are  within  prohibited  degrees 452(rf) 

adultery 464(a),  452(a) 

impotency 452(a) 

extreme  cruelty 464(a),  453(a) 

desertion 452(a),  457(6),  458,  n.,  460(a),  461,  n.,  464(a) 

limited,  in  case  of  conscientious  scruples 464(a) 

in  case  of  void  contract 474(6) 

intoxication  at  time  of  marriage 474(6) 

marriage  in  jest... 474(6) 

force  or  fraud 474(6),  475,  n- 

hearing,  rule  as  to 459(6) 

jurisdiction — 

serving  copy  of  petition  as  giving 21(6) 

what  residence  gives 452(a) 

facts  giving,  to  be  reported 461,  n. 

statutes  on 452(a),  464(a) 

ne  exeat  in  case  of  bill  for  alimony 14(a),  o09(a) 

notice  to  absent  defendant 30,  31 

orders — 

alimony,  for 467 


INDEX  TO   FORMS   AND   NOTES.  775 

Divorce — 

orders  reference,  of —  PAGE. 

in  ex  parte  proceedings 459 

practice  on 459(6) 

to  special  master 459(6) 

when  not  made  in  case  of  adultery 459(6) 

master's  duties  on 461,  n. 

as  to  alimony 467 

order  security  for  costs,  for 473 

petitions  for — 

commencement  of  suit  by 453(a) 

for  adultery 456 

desertion 457 

alimony  pendente  lite 465 

poor  person,  assignment  of  solicitor  for 454,  n. 

'      procedure  on 455(o),  459(6) 

publication  of  notice  and  order — 

see  "Absent  defendants,"  ante. 

replication 455(fi) 

reports  of  master — 

in  case  of  desertion 460 

necessary  statements  in 460(a) 

in  case  of  adultery 462 

residence — 

as  giving  jurisdiction 452(a) 

definition  of. 452(a) 

to  be  continuous 458,  n. 

security  for  costs — 

order  for 473 

statute  on 473(a) 

variance 463,  n. 

Documents,  production  of — 

see  "Papers,  production  of,"  post. 
Domicil — 

of  husband 19,  n.,  28(o) 

*  wife 19,  n.,  28(a) 

necessary  in  divorce „ 452(a) 

see  also  "Residence,"  post. 

"Securhy  for  costs," /)o«<. 
Dower — 

assignment  of — 

bill  for 622 

jurisdiction  of  chancery  over 622(a),  623,  n. 

suit  for  mesne  profits...  623,  n. 

parties  to 623,  n. 

account  on • 623,  n. 

reference  or  commission  to  assign 623,  n. 


776  INDEX   TO   FORMS   AND    NOTES. 

Dower — 

assignment  of —  page. 

from  what  time  mesne  profits  are  computed..., 623,  n. 

execution  and  return  of  commission  on 623,  n. 

decree  for  and  reference 625 

rights  and  liabilities  of  widow 625(a) 

interest  on  arrears  of 625(a) 

practice  on 625(^) 

effect  of  death  of  widow  on 267(a),  448,  n.,  626(a) 

costs  on 626(/)) 

commission  for 627 

release  of 667,  n. 

Dower  and  curtesy — 

election  between  gross  sum  and  interest — 

in  case  of  surplus  money , 267 (o) 

form  of 447 

statute  on 447(/^) 

valuation  of  estate 448,  n. 

measure  of  compensation 448,  n. 

order  of  reference  as  to  amount 449 

master's  report  on  sum  in  gross... 449 

what  is  a  "  reasonable  sum  " 449(a) 

allowance  to  be  inserted  in  order  for  distribution 449(a) 

confirmation  of  master's  report  on 449(o) 

master's  report  on  amount  to  be  invested 451 

sale  of  land,  on — 

consent  to  release 678 

practice  as  to  release 678(a) 

release  of...i 667(a),  678 

endorsement  of  release  on  deed 678(6) 

statute  and  rule  on  release 678(6),  679,  n. 

Drunkards,  proceedings  affecting — 

see  "  Lunatics,  idiots  and  drunkards,"  post. 
Election  between  suit  and  action — 

order  for 117,279 

form  of. 279 

when  defendant  entitled  to  compel 117(a),  279(a) 

complainant  will  not  be  put  to 117(a),  279(a) 

in  case  of  suit  pending  in  another  state 98(a),  117(o),  279(a) 

complainant  not  put  to,  until  answer  filed 117(a),  280,  n. 

practice  on  motion  or  petition  for 117(a),  280,  n. 

service  of  order  for 117(a),  280,  n. 

proceedings  stayed  by  injunction  on 117(a),  280,  n. 

effect  of  default  in  making 117(ffl),  280,  n. 

reasonable  time  allowed  for  making  117(«))  280,  n. 

order  for,  in  place  of  injunction 118(a),  280(o) 

motion  to  discharge,  order  for 118(a),  280(o) 


INDEX   TO   FORMS   AND   NOTES.  777 

Election  between  suit  and  action —  page. 

inquiry  on 118(a),  2S0(a) 

when  injunction  granted  on 118(a),  280(o) 

extension  of  time  for  making 118(a),  281,  n. 

after  decree 118(a),  281,  n. 

Evidence — 

of  existence  of  corporation 5(a) 

aWe^ra/a  to  agree  with  probata 8,  n. 

lost  instrument,  in  case  of. 8,  n. 

affidavit  to  bill  as 17(6) 

bill  stating  document  admitted  by  answer  as 79,  n. 

pleadings  as 7(6),  8,  n.,  105(6) 

answer  to  defendant's  interrogatories  as 115(6) 

depositions  under  commission,  &c. — 

admissibility  as 149,  n. 

death  of  witness  as  affecting 149,  n. 

informality  as  afiecting 149,  n. 

how  to  be  taken  down 153(a) 

documentary  papers — 

notice  of  use  at  hearing ! 165 

rule  as  to , 165(a) 

proofs — 

order  for  ex  parte 170,  170(a) 

cause  to  stand  over  to  supply 177 

leave,  when  granted  to  supply 177(a) 

newly-discovered 177(a) 

deed  of  sherift\-vs 237(6),  (c),  240(a) 

affidavits  used  at  hearing  as 278(a),  279,  n. 

in  case  of  infant 355(a) 

on  mortgage  foreclosure 34(o),  356,  n. 

see  "'evidence'  under  Answer,"  ante. 
Examination  of  defendant  on  third  insufficient  answer — 

order  for 129 

time  of  making 129(rt) 

settling  interrogatories  on 129(a) 

report  as  to  sufficiency  of. , 129 

Examination  of  witnesses — 

advisory  master,  before 164,  n. 

de  bene  esse,  domestic  witness — 

affidavit  for 158 

in  what  cases  to  be  taken 158(a) 

what  notice  to  be  given 158(a) 

witness,  how  compelled  to  t(3stify 158(a) 

mode  of  taking 158(a) 

duties  of  officer  taking 116,  n.,  159,  n. 

affidavit  of  messenger  on 159,  n. 

notice  of  examination  of. 159 

how  servetl 159(c) 


778  INDEX   TO   FORMS   AND   NOTES. 

Examination  of  witnesses — 

de  bene  esse,  domestic  witness —  page, 

statute  applies  only  to lo9(c) 

certilicate  of  master 159(c) 

deposition  on 160 

statutes  as  to 158(a),  159,  n. 

examiners,  before — 

notice  of. 160 

to  be  taken  on  notice  after  issue 160(o) 

when  to  be  commenced  and  concluded 160(a) 

issue  joined  on  plea,  mode  of  taking 160(a) 

adjournment  of. 160(a),  161,  n, 

one  examination  at  the  same  time 160(a) 

rule  as  to  testimony  in  rebuttal 161,  n.,  168(a) 

time  for  taking  may  be  extended 161,  n. 

on  what  days  not  to  be  taken 161,  n. 

form  of 161 

'  examination,  how  taken  down 161(a)j  162,  n. 

statute  as  to  direct  and  cross-examination 162,  n. 

•  irregularities  in  taking 162,  n. 

cross-examination 162,  n. 

to  be  taken  in  narrative  form 162,  n. 

question  and  answer,  when  allowed 162,  n. 

exhibits  on 162,  n. 

copies  of. 162,  n. 

costs  on 162,  n. 

'rule  as  to  paging,  &c 162,  n.,  163,  n. 

duties  of  examiners 163,  n. 

signing  of  deposition 163,  n. 

jurat 163,  n. 

eft'ect  of  death  before  signing 163,  d. 

hling  depositions.  163,  n. 

no  lien  for  fees 163,  n. 

ruling  upon  evidence 163,  n. 

appeal  from  decision  of. 163,  n. 

notice  of... 163,  n.,  164,  n. 

entry  of. 164,  n. 

when  to  be  heard 164,  n. 

costs  on 164,  n. 

nomination  of  examiners 161,  n.,  164,  n. 

rejection  of  testimony  by 164,  n. 

notice  of  motion  extending  time 166 

rule  as  to  extending  time 166(a) 

order  extending  time  under  rules 166 

not  under  rules 166 

affidavits  used  to  obtain 166(6),  167,  n. 

to  close  testimoDj' 167 


INDEX   TO    FORMS   AND   NOTES.  779 

Examination  of  witnesses  — 

examiners,  before —  page. 

when  order  to  close  testimony  granted 167(a) 

relief  granted , 167(a) 

rules  as  to  closing  testimony 167(a),  168,  n. 

order  for  re-examination 168 

practice  regarding  re-examination , 168(a) 

order  for  re-examination,  how  granted 168(a) 

non-resident — 

commission  for — 

affidavit  to  obtain 147 

when  and  how  awarded 145(a),  146,  n.,  147(a) 

rule  when  examination  not  de  bene  esse 147(a) 

notice  of  motion  for 148 

practice  on  application  for 148(a) 

order  for 148 

when  adverse  party  joins  in 148(6) 

English  rule  as  to 148(6) 

admissibility  of. 149,  n. 

objections  to 149,  n. 

effect  of  death  upon 149,  n. 

return  of. 149(a) 

not  to  operate  as  a  stay 149(a) 

costs  on 149(a) 

form  of. 150 

contents  of. 150(a) 

direction  for  execution  of 151 

statutes  as  to  execution  of. 151(c),  152(a),  (6),  (c),  (d), 

153(a),  (6),  (c),  154(a),  (6),  (c),  155(a),  (6) 
notice  of,  by  part  of  commissioners  to  the  others...  156 

English  rule  as  to  notice  by  commissioners 156(a) 

rules  of  court  as  to 147(a),  148(a),  (6),  149(a),  150(a) 

statutes  as  to .145(a),  146,  n.,  147(a),  148(a),  149,  n.,. 

149(a),  150(a),  151(c),  152(a),  (6),  (c),  153(o),  (6),  (c), 
154(a),  (6),  (c),  155(a),  (6) 
commissioners  for — 

nomination  of. 148(a),  (6) 

appointment  of. 148(6) 

oath  of 151 

statute  as  to  oath  of. ^ 151(a) 

directions  to 151  et  seq. 

de  bene  ease  on  notice — 

notice  of  motion  for  order 145 

who  mayapply  for 145(a) 

before  what  officers  taken 145(a) 

notice  of,  how  given 145(a) 

oath  of  officer  on 145(a) 


780  INDEX   TO    FORMS   AND    NOTES. 

Examination  of  witnesses — 

non-resident —  r 

de  bene  esse  on  notice —  page. 

.  oath  of  witnesses  on 145(a) 

notice  by  court's  direction 145(«) 

interrogatories  and  answers  to  be  written 145(«) 

subscription  of  testimony  on 145(o) 

deposition  to  be  certified,  &c 145(a) 

return  of  deposition 145(a) 

application  of  statute  to  chancery 145(a) 

reasons  for  taking 145(a) 

order  for 146 

notice  of,  form  of. 146 

adjournments  on.....  14(J(a) 

statutes  as  to 145(a),  153(a) 

interrogatories,  on  commission — 

service  of  copy  of 146,  n.,  148(a),  150(a) 

drawing  and  signing  of 150(a) 

submission  of,  to  Chancellor 150(a) 

interrogatories,  cross,  on  commission  — 

may  be  submitted 148(a) 

service  of  copies  of. 150(o) 

submission  of,  to  Chancellor 150(o) 

presumption  of  absence  of  witness  at  hearing 149,  n. 

letters  rogatory — 

form  of. 155 

in  what  cases  granted 155(c) 

to  whom  directed 155(c) 

application  for 155(c) 

comity  as  to 155(c) 

to  whom  presented 155(c) 

practice  on 155(c) 

re-examination  of — 

order  for 168 

not  favored 168(a) 

effect  of,  without  order  for 168(a) 

waiver  of  irregularity  in 16S(a) 

order  for,  how  granted 168(a) 

objection  to 168(a) 

to  follow  cross-examination 168(o) 

correction  of  mistake  on 169,  n. 

refreshing  memory  on 169,  n. 

discretion  of  court  as  to  allowing 168(a),  169,  n. 

subpoena  ad  te-tificandum  — 

form  of 156 

how  issued 156(6) 

number  of  names  in 157,  n. 


INDEX  TO   FORMS   AND   NOTES.  781 

Examination  of  witnesses — 

subpoena  ad  testificandum —  page.  ■ 

how  served 157,  n. 

fees  on  service  of. ]57(c() 

order  to  show  cause  for  disobeying 157 

statute  as  to  witness  disobeying 157(a) 

suppressing  depositions — 

when  irregularity  not  sufficient  for 162,  d. 

on  second  examination  without  leave 168(a) 

notice  of  motion  for.., 169 

practice  on 169(a) 

reasons  for 169(a) 

time  for 169(a) 

discretionary 169(«) 

when  taken  in  another  state 169(a) 

for  refusal  to  be  cross-examined 169(6) 

order  for 169 

for  want  of  notice  of  taking 161,  n.,  170,  n. 

Vice  Chancellor,  on  reference  to — 

mode  of  proceeding 164,  n. 

affidavit  to  take  depositions 165 

when  depositions  taken  in  a  cause  before 165(6) 

witnesses,  the — 

fees  of. 157(a) 

order  to  show  cause  for  disobedience ■ 157 

process  for 156,  156(6) 

rule  of  court  as  to  attendance  of 157,  n. 

service  of  process  on 157,  n. 

penalty  for  contempt 157(a) 

credibility  of,  when  destroyed 162,  n. 

party  as 162,  n. 

oath  of. 152(c),  {d),  163,  n. 

competency  of 163,  n. 

rejection  of 164,  n. 

Exceptions — 

affidavit,  to— 

may  be  referred  for  impertinence  in 68(a) 

what  constitutes  impertinence  in 278(a) 

answer,  to — 

amendment  of,  after  hearing 119(a),  124,  n. 

costs  on — 

amendment  of  bill  without,  after  allowance  of. 124,  n. 

on  submission 121,  n.,  125(o) 

double 127(a) 

acceptance  of  further  answer  not  a  waiver  of. 127(a) 

on  third  insufficient  answer 128,  n. 

overruling 130(a) 


782  INDEX   TO   FORMS   AND    NOTES. 

Exceptions — 

answer,  to — 

costs  on—  PAGE. 

on  allowance 130(a) 

overruling  part  and  allowing  part 131,  n. 

expunging — 

rule  as  to  consent  for 12o(6) 

order  for,  in  case  of  scandal  on  report 131 

submission 132 

further  answer,  after — 

second,  after  allowance  of 124(a) 

order  for ^26 

statute  as  to : 126(6) 

in  case  of  insufficiency  of 126(6) 

after  exceptions  and  amendments 127 

costs  on 127(a) 

effect  of  acceptance  of,  on  costs 127(a) 

time  for  filing 127(6) 

practice  on  exceptions  to 12/(6) 

in  case  of  third  insufficient 128,  n. 

effect  of  third  insufficient 128,  n. 

costs  on  third  insufficient 128,  n. 

general  principles  on — 

in  what  cases  will  lie 119(a) 

to  answer  of  corporation 1-^0,  n. 

without  oath 120,  u. 

in  case  of  several  defendants 120,  n. 

joint  defendants 120,  n. 

separate,  to  same  matter  not  allowed 120,  n. 

must  be  conclusive 121(6) 

query  as  to  corporation 122,  n. 

when  plea  stands  for  answer 103(a),  122,  n. 

efiect  of  third  insufficient  answer 128,  n. 

hearing  of — 

rule  for,  to  master's  report 126 

effect  of  rule  for 126(a) 

impertinence,  for — 

definition  of 119(«) 

rules  as  to 120,  n. 

form 121 

when  exception  for  fails 121(6) 

to  point  out  exceptionable  matter 121(6) 

grounds  for  to  be  clear 121(6) 

injunctions,  in  case  of— 

effect  of,  on  injunction 122,  n. 

motion  to  dissolve,  and  to  hear  at  same  time 122,  n. 

194  n 
practice  on i^-»,  u. 


INDEX  TO   F0EM8  AND   NOTES.  783 

J^xceptions — 

answer,  to — 

insufficiency,  for —  page. 

form  of. 119 

definition  of 119(a) 

to  answer  of  corporation 120,  n. 

without  oath 120,  n. 

of  infant 122,  n. 

proceeedings  before  master  on 123(a) 

what  constitutes 124(a) 

second  answer,  in  case  of. 126(6) 

in  case  of  further  answer 127(a),  (6) 

costs  on 127(a),  128,  n. 

order  for  attachment  on 128 

of  third  answer,  order  pro  confesso  on 130 

may  be  allowed  as  to  part 119(a),  126(6),  131,  n. 

interrogatories,  examination  upon — 

order  for 129 

time  for 129(a) 

settling  of. 129(a) 

report  as  to  sufficiency  of  answer 129 

orders  on — 

referring 122 

under  rule  75 123 

nisi 124 

for  hearing  upon  exceptions  to  report 126 

further  answer 126 

referring  exceptions  on  second,  &c.,  answer 127 

for  attachment 128 

examination  upon  interrogatories 129 

to  take  bill  as  confessed 130 

confirming  master's  report  on 130 

to  expunge  scandal,  &c.,  on  report 131 

submission 132 

plea  standing  for  answer,  to 103(a) 

practice  on — 

in  what  cases  may  be  filed 119(a) 

method  of  stating 119(a) 

how  to  be  framed 120,  n. 

entitled 120,  n. 

exceptionable  matter  to  be  pointed  out 120,  n. 

time  of  taking 120,  n. 

filing 120,  n. 

in  case  of  demurrer  and  answer 120,  n. 

time  for  filing  after  plea  overruled 120,  n.,  121,  n. 

how  to  be  signed. 121(a) 

to  be  confined  to  a  distinct  question 121(6) 


784  INDEX   TO   FORMS   AND   NOTES. 

Exceptions  — 

answer,  to — 

practice  on —  page. 

certainty  in  stating 121(6) 

effect  of  order  to  amend  on 122,  n. 

mode  of  procedure  before  master 123(a) 

order  to  answer  amended  bill  and  exceptions 124,  n. 

as  to  injunction  bills 124,  n. 

scandal,  impertinence,  &c 124(a) 

rule  as  to  answering  bill  and 125(a) 

upon  exceptions  to  second,  &c ,  answer 127(6) 

time  of  filing  further  answer 127(6) 

in  case  of  third  insufficient 128,  n. 

on  insufficiency  in  part 131,  n. 

referring — 

by  one  rule  to  same  master 120,  n. 

form  of 122 

statute  on 122(a) 

order  of  proceeding  before  master 123,  n. 

one  rule  of. 123,  n. 

for  imjjertinence  or  scandal 123 

on  second  or  third  answer 127 

report  of  master  on — 

form  of 123 

mode  of  procedure  before  master 123(a) 

to  be  filed 124,  n. 

exceptions  to 125 

rule  for  hearing  exceptions  to 126 

effect  of  rule  for  hearing  exceptions  to 126(a) 

as  to  sufficiency  of  examination 129 

order  confirming 130 

rule  nisi  to  confirm — 

form  of 124 

practice  on 124(a) 

scandal,  for — 

definition  of. 119(a) 

rules  as  to 120,  n. 

form 121 

to  point  out  exceptionable  matter 121(6) 

submission  to — 

effect  of. 121,  n. 

notice  of,  to  be  given 121,  n. 

notice  of. 125 

how  made 125(a) 

costs  on 121,  n.,  125(a) 

rules  of  court  as  to  practice  on 125(a),  (6) 


INDEX  TO   FORMS  AND   NOTES.  785 

Exceptions — 

bill,  to— 

costs  on—  PAGE. 

on  submission 61(a) 

expunging 67(a) 

allowance  in  part 67(a) 

exceptions  to  master's  report  on — 

form 65 

time  of  filing 65(a) 

setting  down  for  hearing 65(a) 

entry  and  service  of  rule  for  argument 65(a) 

notice  of  hearing  of,  dated  on  Sunday 65(a) 

rule  as  to  setting  down  for  hearing 65(a) 

effect  of  neglect  to  appear  on 65(a) 

what,  maybe  taken 65(a) 

rule  for  hearing  upon 66 

time  for  setting  down 66(a),  67,  n. 

notice  of  hearing  upon 67 

practice  on  setting  doAvn 67,  n. 

procedure  on  argument  of. 67(a) 

evidence  on  argument  of. 67(a) 

order  to  review  report 67(a) 

expunging — 

order  for 67(a) 

method  of. 67(a) 

costs  on 67(a) 

impertinence,  for — 

form  for 61 

what  may  be  referred  for 68(a) 

constitutes 68(a),  119(a) 

affidavit  referred  for.. 68(a),  278(a) 

master's  report  on — 

form  of. 63 

time  of  making 63(a) 

when  considered  abandoned 63(a) 

l)y  whom  to  be  filed 63(a) 

conclusiveness  of 63(a) 

order  to  review 67(a) 

confirming 68 

master's  summons  on — 

form  of 62 

affidavit  of  service  of 63 

time  of  service  of. 63(a) 

motion  on,  under  rule — 

when  ol)jection  may  be  made  by 61(a) 

is  a  waiver  of  exceptions 62,  n. 

dismissal  of  bill  by 62,  n. 

2z 


786  INDEX  TO   FORMS   AND   NOTES. 

Exceptions  — 
bill,  to— 

practice  on —  page. 

effect  of  obtaining  time  to  answer 61(a) 

how  taken 61(a) 

served 61(a) 

statements  in  61(a) 

English  rule 61(a) 

referring — 

irrelevant  matter  stricken  out  on 61(a) 

clerk  to  enter  rule 61(a) 

by  one  rule  to  same  master 61(a) 

form  of  rule 62 

mode  of. 62(a) 

practice  on 62(a) 

time  and  place  assigned  for 63(a) 

when  master  may  proceed  ex  parte 63(a) 

practice  at  hearing 63(a) 

rule  nisi  to  confirm — 

effect  of  omission  to  enter 63(a) 

form  of 64 

entry  of 64(a) 

service  of 64(a) 

scandal,  reference  for 61(a) 

submission  to — 

complainant's  right  to  make 61(a) 

practice  on 61(a) 

costs  on 61(o) 

hearing  of — 

cause  set  down,  on — 

notice  of. l'^ 

rules  as  to  time  and  practice  on 172(a),  173(n) 

order  for 1'^ 

service  of  copy  of  order  for 173(a) 

master's  report  on  foreclosure,  to  — 

allowance  of. 356,  n. 

when  to  be  taken  in  lieu  of  re-reference 356,  n. 

upon  what  to  be  founded 357,  n. 

on  the  ground  of  irregularity 357,  n. 

security  for  costs,  to — 

to  surety  on  bond  for 70(o) 

how  taken 70(a) 

justification  on '0(") 

Executions — 

advertisement  on — 

form  of 21 1 

statutes  and  practice  as  to 217(a),  218,  n. 


INDEX   TO   FORMS   AND   NOTES.  787 

Executions — 

advertisement  on —  page. 

time  of  sale  stated  in 219(a) 

description  of  property  in 219(6) 

signing  of 219(c) 

of  adjournment  of  sale 230 

statute  on,  in  case  of  adjournment 230(a) 

appeals,  pending — 

when  not  to  issue  without  order  for 188,  n. 

order  for,  notwithstanding 194 

when  discretionary 194(a) 

security  required  on,  when  granted 194(a) 

order  for,  for  costs  on  affirmance  of. 201 

capias  ad  satisfaciendum — 

form  of : 242 

statute  on 242(a),  243,  n. 

costs — 

order  for,  on  affirmance  of  appeal 201 

form  of,  against  goods  and  lands  for 214 

rule  as  to  issuing  for 214(a) 

practice  as  to  demand  for 214(a) 

creditor's  bills,  on — 

practice  as  to  taking  out 513,  n. 

issuing  of,  out  of  chancery 520(a) 

forms  of — 

for  sale  of  mortgaged  premises 210 

against  goods  and  lands  for  costs 214 

payment  of  money 216 

fi.fa.  for  deficiency 224 

capias  ad  salii'faeiendum 242 

new,  in  case  of  death,  &c. — 

petition  for 226 

statute  on 226(a) 

affidavits  on 227,228 

notice  on 228 

order  for 229 

orders  for— 

notwithstanding  appeal  194 

for  costs  on  affirmance  of  appeal 201 

fi.fa.  on  deficiency 220 

new - 229 

principles  and  practice  applicable  to — 

power  of  court  to  issue 210(a) 

time  of  issuing 210(a) 

to  be  recorded ., 210(a) 

whom  directed 210(a) 

conform  to  decree 212(a) 


788  INDEX   TO   FORMS   AND   NOTES. 

Executions — 

principles  and  practice  applicable  to —  page. 

return  of  sheriff  to 212(6),  213,  n. 

levy  not  after  return-day  of 214(a) 

when  new  writ  necessary  after  return-day 214(a) 

practice  on  fi.Ja.  for  money 216(a) 

what  constitutes  executing  writ 228(a) 

return  of  sheriff  to 212(6),  213,  n.,  233(a) 

unexecuted  writs 234(i) 

signing  of  return  of. 234(J) 

from  what  time  writ  binds 243,  n. 

sale  under — 

adjournment  of. 213(a) 

how  made 213(a) 

appointment  of  master  to  adjourn 219 

statute  as  to  adjournment  of,  by  master 219(d) 

statement  of  master  on  adjournment  of 220 

conditions  of. 230 

practice  on  and  nature  of.... 230(6) 

acknowledgment  of  purchaser  under 232,  232(a) 

sheriff's  statement  on 233 

statute  on  sheriff's  statement 233(a) 

notes  on  sheriff's  statement  of. 234(a  to  j) 

sheriff's  deed  on 2o7 

notes  on  sheriff's  deed  on 237(a),  (6),  (c),  238(a),  (6),  (c), 

239(a),  (6),  240(a),  (6),  241(a) 
see  "advertisement,"  under  this  title,  supra. 
sequestration — 

order  for ^^ 

writ  of. ^^ 

when  will  issue 43(a) 

statute  on 242(a),  243,  n. 

see  also  " '  execution '  under  Foreclosure,"  "post. 
"Scire  facias,"  post. 
Executors — 

see  "Administrators  and  executors,"  ante. 
Exhibits— 

to  be  left  with  examiner 162,  n. 

examination  of ^^^'  ^^ 

^  162  n 

copies  01 • ■'""'    • 

inspection  of. Ibz,  n. 

costs  of  copies  of. ^^^'  ^■ 

Extension  of  time — 

demurrer,  as  affecting  right  of. 92(a) 

partition,  on — 

order  for,  on  master's  report 414 

practice  as  to  order  for 414(6) 

when  rule  nisi  necessary 414(6) 


INDEX  TO   FORMS   AND   NOTES.  789 

Extension  of  time  — 

testimony,  on  taking —  page. 

notice  of  motion  for 166 

practice  on 166(a) 

order  for,  under  rules 166 

not  under  rules 166 

time  of  service  of  affidavit  for 167,  n. 

see  also  "Answer,  '  extending  time  for,'  "  ante. 
Feigned  issue  — 

hearing  for  further  directions  after  trial  of — 

notice  of. 252 

practice  in 252(a) 

appeal,  when  not  a  stay  on 252(a) 

jury- 
power  of  court  to  order  special 246(6) 

order  for  struck 249 

motion  for  struck 249(a) 

new  trial — 

notice  of  motion  for 250 

when  granted 250(a),  (6),  251(a) 

when  application  for,  to  be  made 251,  n. 

order  for 251 

reasons  for  granting 251(a) 

practice  on 251(6) 

practice  on — 

notice  of  motion  for,  under  the  statute 243 

order  for,  under  the  statute 244 

at  the  hearing ....  245 

at  what  time  directed 245(a) 

order  for,  appealable 245(a) 

form  of 246 

pleadings  and  practice  on 246(c),  247,  n. 

postea 249 

and  transcript,  where  returnable 249(6) 

certificate  of  trial  judge 250 

statement  and  certificate  of  trial  judge 250(a) 

conclusiveness  of  verdict 250(a) 

as  to  exceptions  on  trial 251,  n. 

principles  governing — 

statute  as  to  direction  of  trial  of 243(a) 

in  case  of  title 244,  n. 

control  of  chancery  over 244,  n. 

feigned  issue  and  issue  at  law  distinguished 244(a) 

in  what  cases  directed 245(a) 

discretion  of  court  in  directing 245(a) 

issue  may  be  on  court's  motion 245(6) 

application  of  relator 245(6) 


790  INDEX  TO  FORMS   AND   NOTES. 

Feigned  issue — 

special  cases,  in —  page. 

interpleader,  on 487(a) 

lunacy,  in  case  of — 

notice  of  motion  for 652 

order  for 654 

quiet  title,  to 618 

Filing  papers,  rule  regarding 1(a) 

Final  decree — see  "  Decree,"  ante. 
Foreclosure — 

answer  on — 

of  second  mortgagee 107 

what  may  be  set  up  under 107(6) 

effect  of  neglect  to  make 107(6) 

defence  of  mistake  in 334(a) 

setting  up  a  tender 345 

how  tender  to  be  set  up  in 345(6) 

effect  of  admission  by  guardian  ad  litem  in 363,  n. 

appearance — 

entering  of,  when  not  a  stay 210(a) 

of  infant  by  clerk 50,  n.,  348,  n. 

in  case  of  absent  defendants 362,  n. 

bills  on — 

address  of,  in  County  Circuit  Court 2 

short  form  of. 326 

form  in  complicated  case S31 

in  case  of  chattel  mortgage.., 333,  n. 

description  of  property  in 334(a) 

frame  of. 335(a) 

recitals  in,  rules  as  to 335(a) 

by  corporation,  averments  in 335(a) 

statement  of  assignment  in 8  n.,  336,  n. 

for  two  mortgages 336,  n. 

must  allege  maturity  of  debt 336,  n. 

allegation  of  non-payment  in , 336,  n. 

for  unpaid  purchase-money 33G,  n. 

must  allege  defendant's  interest 340(6) 

amendment  of,  as  to  parties 343,  n. 

amendments  to,  generally 343,  n. 

directions  for  drawing 345(a) 

when  debt  payable  in  installments 336,  n.,  350(a) 

prayer  for  receiver  in 372(a). 

see  also  title  "Amendments,  '  bill  to,'  "  ante. 

chattel  mortgages 333,  n. 

collateral  security  for  debt  less  than  mortgage 362,  n. 

complainants — 

when  defendant  may  proceed  as 139(a) 


INDEX  TO   FOKMS  AND   NOTES.  791 

Foreclosure — 

complainants —  page. 

general  principles  as  to 331(a) 

sole  mortgagee 331(a) 

several  mortgagees 331(a) 

refusal  to  join  as 331(a) 

assignee  as  absolute  owner 331(a) 

and  mortgagee  as 331(a) 

partners  as 332,  n. 

trustee  and  cestuis  que  tntst 332,  n. 

executor  or  administrator 332,  n. 

surviving  co-mortgagee 332,  n. 

executors  who  have  qualified 332,  n. 

foreign  administrator  or  executor 332,  n. 

parties  acting  in  official  capacity 332,  n. 

husband  and  wife,  when  not  to  be 332,  n. 

encumbrancer,  when  not  to  be 333,  n. 

chattel  mortgagee 333,  n. 

confirmation  of  report — 

when  rule  nisi  not  necessary 107(6),  347(a),  355(a) 

is  necessary 356,  n. 

costs  on — 

for  drawing  tickets 22(6) 

mortgagee  not  answering  not  entitled  to 107(6) 

decree  to  include 326(a) 

for  searches 327,  n. 

where  there  are  more  than  one  mortgage 336,  n. 

cross-bill — 

relief  by 334(a) 

decree  on — 

when  to  be  made  after  report 107(6) 

power  of  court  to  make 326(a) 

statute  on  350(a) 

final,  pur&uant  to  master's  report 353 

after  report,  no  infants 355(a) 

in  case  of  infants 348,  n.,  355((t) 

rules  on. 355(a) 

no  exceptions  to  report,  in  case  of. 347(a),  356,  n. 

in  case  of  forfeiture  whether  money  all  due  or  not 350,  n. 

interest  on o59(a) 

final,  for  sale  of  whole  of  premises 361 

on  second  mortgage  361(o) 

must  conform  to  bill 361(a) 

satisfaction  of. 362,  n. 

by  agreement.  362,  n. 

eflect  of,  as  binding  party 362,  n. 

oil  prior  mortgagee 3()2,  n. 


792  INDEX   TO   FORMS   AND   NOTES. 

Foreclosure — 

decree  on —  page. 

appearance  of  absent  defendant , 362,  n. 

in  case  of  collateral  security  to  be  for  actual  debt 362,  n. 

when  not  to  bind  cestuis  que  trust 362,  n. 

not  to  be  made  on  unsworn  answer  of  guardian 363,  n. 

for  sale  of  part  of  premises  against  infants  and  others 364 

final,  after  report  for  sale  of  part,  not  all  due 365 

upon  report  for  sale  of  residue 367 

special,  in  favor  of  complainant  and  defendants 368 

to  order  sale  in  inverse  order  of  alienation 368(a),  369,  n. 

deed  on — 

see  under  "execution  on,"  this  title, 
defences  to — 

what  allowed  as  set-off. , 107(6) 

matters  in  avoidance  not  a 107(6) 

error  in  deed  of  mortgagor  not  a 107(6) 

rights  of  third  party  against  mortgagor  not  a 107(6),  342,  n. 

tender  as 345(6) 

acts  of  complainant  as 351,  n. 

defendant's  carelessness  not  a 351,  n. 

receipt  of  interest  after  due  as 351,  n. 

extension  of  time  of  payment  as 351,  n. 

defendants  on  — 

guardian  ad  litem 49(6),  50,  n.,  53(a),  54(a),  55(a),  56(a) 

refusal  to  join  as  complainant 331(a) 

general  principles  regarding 340(6) 

owner  of  premises  must  be , 341,  n. 

when  mortgagee  who  has  assigned  not  to  be 341,  u. 

subsequent  encumbrancers  as 341,  n. 

first  mortgagee  not  to  be 341,  n. 

prior  encumbrancers 341,  n. 

parties  having  interest  in  subject-matter  to  be 341,  n. 

cestui  que  trust  and  trustee 341,  n. 

junior  encumbrancers  as 341,  n. 

when  remaindermen  not  to  be 342,  n. 

who  are  necessary  parties 341,  n.,  342,  n. 

proper  parties 341,  n.,  342,  n. 

when  mortgagor  not  to  be 341,  n.,  342,  n. 

executor  of  co-mortgagee  as 332,  n.,  342,  n. 

widow  of  mortgagee  as 342,  n. 

owner  by  unrecorded  assignment  as 342,  n. 

when  assignor  not  to  be 342,  n. 

heirs-at-law,  &c.,  of  husband  not  to  be 342,  n. 

assignee  of  bankrupt,  as 342,  n.,  343,  n. 

receiver  of  corporation  after  ^ro  confesso  not  to  be 343,  n. 

purchasers  pending  the  bill 343,  n. 


INDEX   TO   FORMS   AND   NOTES.  793 

Foreclosure — 

defendants  on —  page. 

encumbrancers  pending  the  bill 343,  n. 

purchaser  on  execution  pending  the  bill 343,  n. 

lunatic,  as 343,  n. 

guardian  of  lunatic,  as.... 343,  n. 

married  woman,  as 343,  n. 

when  judgment  creditor  to  be 344,  n. 

executors,  &c.,  of  deceased  mortgagor,  as 344,  n. 

in  case  of  unknown  parties 344(a) 

see  also  ''Absent  defendants,"  ante. 

depositions  on  hearing  before  master,  rule  on 356,  n. 

directions  to  solicitor 326(a) 

evidence  on — 

matters  in  avoidance,  how  proved 107(6) 

in  case  of  infants ". 348,  n.,  355(a) 

after  decree  pro  confesso 34(a),  356,  n. 

exceptions  to  report  on — 

setting  down  cause'for  hearing  on 347(a) 

when  allowed  and  practice  on 355(a),  356,  n.,  357,  n. 

execution  on — 

execution  for  sale  of  mortgaged  premises 210 

power  of  court  to  issue 210(a) 

when  will  issue 210(a) 

appearance  not  to  stay 210(a) 

to  be  recorded 210(a) 

what  officer  directed 210(a) 

when  sale  under,  to  be  in  parcels 211(a) 

description  of  premises  in 211(6) 

to  conform  to  the  decree 212(a) 

return  of. 212(6),  233(a) 

adjournment  of  sale  under 213(a) 

sale  under,  not  to  be  on  a  holiday 213(a) 

on  Saturday  afternoon 213(o) 

under,  by  whom  and  how  rnade 213(a) 

place  of  sale 213(a),  214,  n. 

disputed  bid  on 214,  n. 

against  goods  and  lands  for  costs 214 

rule  as  to  costs 214(a) 

no  levy  after  return-day 214(a) 

when  new  writ  is  necessary 214(a) 

advertisement  of  sheriff's  or  master's  sale  on 217 

method  of  advertising  on 217(a),  218,  n. 

hour  and  place  of  sale  in  advertisement 219(a) 

description  of  premises  in  advertisement 219(6) 

signing  advertisements  on 219(c) 

appointment  of  master,  c*^c  ,  to  adjourn  sale  on 219 


794  INDEX   TO   FORMS   AND   NOTES. 

Foreclosure — 

execution  on —  page, 

statute  as  to  adjournments 219(cZ) 

statement  of  officer  making  adjournment 220 

order  for  _^en' /aci'as  for  deficiency 220 

statute  as  to  deficiency 220(a) 

abstract  of  decree  for  deficiency 222 

effect  of  abstract  of  decree 222(a),  223,  n. 

fieri  facias  for  deficiency 224 

petition  for  new,  on  death  of  sheriff. 226 

statute  as  to  disability,  &c.,  of  sheriff. 226(a) 

affidavits  to  petition  for  new 227,  228 

notice  under  petition  for  new 228 

what  constitutes  executing  the  writ 228(«) 

order  for  new,  in  case  of  death  of  sheriff. 229 

advertisement  in  newspapers  of  adjournment 230 

statute  as  to  advertisement  of  adjournment 230(a) 

conditions  of  sale  on 230 

statute  of  frauds  as  aftecting  sales  under...., 230(6) 

who  to  fix  terms  of  sale  on 231,  n. 

purchaser's  memorandum 232 

sheriff's  or  master's  statement  on  sale  on 233 

statute  as  to  sherift''s,  &c.,  statement 233(o) 

notes  on  sheriff's  statement 234(a  to  J) 

sheriff's  report  on  sale  on 235 

statute  on  sheriff's  report  on  sale  on 235(a) 

rule  on  sheriff's  report  on  sale  on 235(a) 

sheriff's  affidavit  to  report 236 

order  confirming  sale  under 236 

deed  by  sherifi  or  master  for  land  sold  on 237 

deed  on — 

what  estate  vests  under 237(a) 

recitals  in 237(6) 

variance  in,  as  to 237(6) 

as  evidence  in  case  of  non-recital  of  notice 237(c) 

to  assignee  of  bid 239(a) 

apt  Avords  of  conveyance  in 239(6) 

statute  as  to  evidence  of  recitals 240(a) 

execution  of,  by  deputy  she  iff. 240(a) 

time  of  taking  efl'ect 240(6) 

delivery  of,  out  of  state 240(6) 

title  under,  when  not  affected  by 240(6) 

acknowledgment  of. 241(a) 

oath  or  affirmation  to  be  endorsed  on  conveyance..  241 

statute  as  to  endorsement  of  oath 241(a) 

execution  of,  by  successor  of  officer 241(a) 


INDEX    TO   FORMS    AND    NOTES.  795 

Foreclosure — 

infant  defendants  on —  page. 

appointment  of  guardian  ad  litem "19(6),  348,  n. 

appearance  of,  by  clerk 50,  n.,  348,  n. 

reference  when  there  are 348,  n. 

rejiort  of  master  when  there  are 348,  n. 

interest — 

rate  of,  allowed  on  bond  and  mortgage 359(a) 

decree 359(a) 

in  case  of  partial  payments,  how  computed 359(a) 

when  in  excess  of  penalty  of  bond 359(a) 

interlocutory  decree  on — 

non-resident  and  infant  defendants,  money  due 347 

signing  of,  after  order  extending  time  to  answer 349,  n. 

pro  confesso  and  reference,  money  not  all  due 350 

statute  as  to  money  not  all  due 350(a) 

Us  pendens,  statute  of,  not  to  apply  to 343,  n. 

name,  christian,  of  married  woman  when  unknown — 

affidavit  of. 330 

statute  as  to  unknown  name 330(a) 

parties — 

complainant 331(a) 

defendant 340(6) 

may  be  added  at  any  time 341,  n. 

want  of,  objection  to  at  hearing 341,  n. 

on  appeal 342,  n, 

see  also  "  complainant,"  "  defendant,"  this  title,  supra. 

receivers — 

petition  for,  of  rents,  &c.,  of  mortgaged  premises 372 

when  and  how  appointed 372(a) 

prayer  in  bill  for,  to  be  specific..... 372(a) 

petition  for,  to  be  verified 374(a) 

order  to  show  cause  on  petition  for 375 

service  of,  how  made 375(a) 

appointing 375 

bond  of. 376 

attornment  of  tenants  to 376(a) 

fees  of 376(6) 

amount  of  bond  of 376(c) 

notice  to  tenant  to  attorn  to  540 

attornment  by  tenant  to 540 

affidavit  to  account  by 540 

recovery  of  balance  on  strict 363,  n. 

reference  on — 

wiien  there  are  outstanding  encumlirancers 107(6) 

non-resident  and  infant  defendants...  347 

rules  governing 347(a),  348,  n.,  349,  n. 


796  INDEX   TO   FORMS   AND    NOTEvS. 

Foreclosure — 

reference  on —  page. 

when  consent  to,  is  necessary 348,  n.,  349,  n. 

not  necessary  to  set  down  for  hearing  to  obtain 349,  n. 

on  p'o  confesso,  money  not  all  due 350 

statute  when  money  is  not  all  due 350(a) 

master's  summons  on 354 

rules  as  to  service,  &c.,  of  summons  on 354(a) 

rule  as  to  hearing  on 354(a) 

effect  of  not  api)earing  at  hearing 354(a) 

report  on — 

where  there  is  no  order  of  reference 352 

rule  when  no  order  of  reference  necessary 352(a) 

when  mortgage  is  due  and  there  are  infant  defendants 355 

rules  as  to  priority  of  claims  in 107(6),  355(a) 

rule  as  to  confirmation  of. 355(a),  356,  n. 

proofs,  when  to  be  filed  with 348,  n.,  356,  n. 

exceptions  to 356,  n.,  357,  n. 

where  money  is  not  all  due 359 

interest,  how  computed  in... 359(a) 

for  sale  of  residue  to  satisfy  balance  due 360 

sale  on — 

premises  to  be  sold  in  inverse  order  of  alienation 368(a) 

efl^ect  of  release  of  part  of  premises 369,  n. 

see  also  "  execution,"  this  title,  supra. 

satisfaction  of  decree 362,  n. 

stay  of  execution — 

entering  of  appearance  not  to 210(a) 

in  case  of  absent  defendant , 362,  n. 

.strict  foreclosure — 

bill  for 386 

parties  to 386(a) 

decree  for 387 

estate  acquired  under 387(a) 

effect  of,  on  bond 363,  n.,  387(a) 

redemption  under 387(a) 

final  order  for,  upon  default  of  defendant 388 

affidavit  of  default 388(a) 

when  decree  for,  not  sustained 388(a) 

bill  for,  against  an  infant 389 

general  principles  governing  infants  on 389(a) 

interlocutory  decree  on 393 

order  confirming  master's  report  on... 395 

master's  report  of  defendant's  default 396 

complainant's  solicitor's  aflidavit  of  attendance 397 

notice  to  guardian  ad  litem  on 398 

final  decree  against  infant  on 399 


INDEX   TO   FORMS   AND   NOTES.  797 

Foreclosure — 

summons  by  master —  page. 

to  outstanding  encumbrancers 107(6) 

on  reference  for  surplus  money 258(a) 

form  of 354 

issuing  and  service  of. 354(a) 

surplus  money — 

controversies  as  to,  llo^v  settled 355(a) 

see  also  title  "  Surplus  money,"  post. 

tender — 

answer  setting  up 345 

defence  of,  how  to  be  set  up 345(6) 

eflect  of. 345(6) 

what  is  a  good 345(6) 

statute  on 345(6),  346,  n. 

tickets  on — 

form  of. 22,  23 

practice  as  to 22(6) 

affidavit  of  service  of. 22(6) 

fees  on 23,  n. 

by  whom  supplied 23(a) 

writ  of  assistance — 

against  whom  issued 202(a) 

who  are  entitled  to 202(a) 

title  not  to  be  tried  under 202(a) 

notice  and  demand  of  possession 203 

demand  and  exhibit  of  deed,  how  made 203(a) 

proof  of  demand  and  exhibit  of  deed  necessary 203(6) 

service  of  notice  and  demand 203 

petition  for 204 

affidavit  to  petition 205 

notice  of  motion  for  order  for  possession 206 

proof  of  service  of  notice  of  motion 206 

hearing  party  in  possession  on  motion  for 206(a) 

notice  to  be  for  regular  motion-day 206(a) 

amendment  of  petition  as  to  part  of  premises 206(6) 

practice  at  hearing  to  obtain  order  for  possession 206(6) 

order  for  possession 200 

proof  of  service  of  order  for  possession 207 

clerk  to  furnish  copies  of  order  for  possession 207(a) 

notice  of  motion  for 208 

when  allowed 202(a),  208(a) 

order  for 208 

writ  of. 209 

costs  on 209(a) 


798  INDEX  TO   FORMS   AND   NOTES. 

Foreign  corporations —  page, 

introduction  to  bill  by 5 

proof  of  corporate  existence  of. 5(a) 

as  an  absent  defendant 32,  n.,  33,  n. 

Forfeiture  in  case  of  mortgage — 

condition  for,  to  be  explicit 351,  n. 

acts  of  the  complainant  as  a  defence  to 351,  n. 

in  case  of  carelessness  of  defendant 351,  n. 

receipt  of  after  due  interest  as  a  waiver  of. 351,  n. 

extension  of  time  as  a  defence  to 351,  n. 

Guardian  ad  litem  for  infants,  lunatics,  &c. — 
appearance  by — 

form  of. 52 

in  case  of  foreclosure 50,  n.,  348,  n. 

sale  of  land  limited  over 688 

appointment  of — 

affidavits  on — 

in  case  of  non-resident  infants 50,  n. 

of  notice 51 

non-residence 51 

subscribing  witness  to  consent  and  age 54 

in  case  of  lunatic 54(a) 

of  age 56 

witness  to  petition 56 

consent  to  act — 

of  guardian,  infant  over  fourteen 53 

rule  as  to 53(a) 

of  guardian,  infant  under  fourteen 56 

notice  on — 

to  infant  over  fourteen  years 49 

service  of,  on  resident 50,  n. 

non-resident 50,  n. 

to  infant  under  fourteen  years 50 

service  of,  on  person  i/i  Zoco  pare7!/is 50(a) 

to  lunatic 55,  n. 

order  for — 

on  application  of  complainant ; 51 

infant's  petition 54 

in  case  of  lunatic 54(a) 

when  infant  under  fourteen  years 56 

petition  for — 

by  minor  over  fourteen  years 53 

rule  as  to 53(a) 

on  behalf  of  minor  under  fourteen 55 

by  whom  presented 53(a),  55(a) 


INDEX   TO   FORMS   AND   NOTES.  799 

•Guardian  ad  litem  for  infants,  lunatics,  &c. — 
pleadings  by — 

answer  by —  page. 

formal  by  clerk 50,  u. 

for  infant 104 

efiect  of. 101(6) 

for  infant  and  adults 104 

lunatic,  &c 105 

infants  in  partition 106 

affidavits  to 114,  114(a) 

effect  of  unsworn 363,  n. 

bill  by— 

for  infant 3,  3(6),  4,  n. 

lunatic 4,  4(a),  7,  7(a) 

practice  in  case  of — 

in  case  of  concealed  infants , 20,  n. 

suit  to  be  brought  by  next  friend 3(6),  4,  n.,  53(a) 

who  to  be  appointed 53(a) 

in  case  of  lunatic,  clerk  to  be  appointed 54(a) 

when  defendant  is  aged  or  infirm 56(a) 

court  will  act  on  its  own  motion 56(a) 

husband  may  be,  for  infant  wife 104(6) 

when  general  guardian  of  lunatic  to  be 105(a) 

defence  to  be  by  guardian 4,  n.,  53(a),  105(a) 

new  appointment  in  case  of  death 105(a) 

clerk  of  the  court  when  appointed 49(6),  50,  n.,  54(a),  348,  n. 

court  rules  on 49(6),  50,  n.,  53(a),  348,  n. 

prochein  ami — 

when  suit  to  be  brought  by 3(6),  4,  n.,  53(a) 

Guardian,  general  or  special — 

lunatics,  idiots  and  drunkards,  in  case  of — 

appointment  of. 654(a) 

see  also  "  Lunatics,  &c.,  '  sale  of  land  of,'  "  post. 
sale  of  land  of  infant,  in  case  of — 

order  appointing  for 671(a),  673(a),  674 

appointment  for,  in  case  of  death. 674(6) 

see  also  "  Sale  of  land,  '  infant,  of,'  "  post. 
sale  of  land  limited  over,  in  case  of — 

certificate  as  to  no  guardian 687 

order  appointing 687 

see  also  "Sale  of  land,  'limited  over,' "  post. 
Guardian,  non-resident — 

removal  of  ward's  property,  by — 

petition  for 700 

affidavit  to  petition 701 

notice  of  application  for 702 

order  for 702 

statutes  as  to C>m{u},  6(17,  n.,  700(a),  701,  n.,  726(a) 


800  INDEX   TO   FORMS   AND   NOTES. 

Habeas  corpus —  PAGE. 

application  for,  after  writ  of  attachment "15(6) 

petition  for 476 

statute  on 476(a) 

power  of  chancery  over 476(a) 

in  case  of  infants 476(a) 

alfidavit  to  petition  for 478 

writ  of. 478 

endorsement  of  writ  of.  479 

})roof  of  service  of  writ  of. 479 

order  for  custody  of  infant 479 

Handwriting,  rule  as  to  legibility  of. 1(a) 

Hearing — 

advisory  master  bv^ 

see  "Vice  Chancellor,"  this  title, 
amendments — 

to  bill  at  or  after 135(a) 

answer  after  cause  set  down  for 177(a) 

argument  of  the  cause  on — 

papers  to  be  furnished  at 173(/)) 

opening  and  reply  on 173(6),  174,  n. 

on  bill  and  answer , 174,  n. 

costs  on  reply  allowed 174,  n. 

assigning  day  for  final 171(a) 

bringing  on  cause  — 

rule  as  to 172(a) 

costs  on  failure  in  case  of 172(a) 

cause  standing  over  at — 
to  add  parties — 

order  for 176 

English  practice  on 176(6) 

want  of  parties,  time  for  objection  to 176(6) 

on  court's  motion 176(6) 

practice  in  New  .Jersey  on 176(6) 

order  for,  not  appealable...,. 176(6) 

to  supply  proofs — 

order  fur 177 

in  case  of  defects  in  testimony 177(a) 

newly-discovered  testimony 177(a) 

demurrer,  of 90,  n.,  91,  n. 

evidence  on — 

notice  of  using  documentary  paper  at 165 

rule  as  to  documentary  paper  at 165(a) 

when  cause  heard  on  bill  and  answer 174,  n. 

exceptions  to  master's  report,  on — 

time  and  service  of  order  setting  down 172(a) 

order  for. 173 


INDEX    TO    FORMS    AND    NOTES.  801 

Hearing — 

excei^tions  to  master's  report,  on  —  page. 

on  Avhat  dny  of  term  to  be  heard... 173(a) 

what  notice  to  be  given 173(a) 

copy  of  order,  when  to  be  served 173(a) 

in  case  of  no  order 173(a) 

feigned  issue,  on — 

notice  of,  for  fuitlier  directions 252 

practice  on 252(a) 

non-attendance  at  effect  of — 

of  complainant 141(6),  171(a),  174,  n. 

defendant 174,  n. 

note  of  issue  to  be  furnished 171(a) 

notice  of — 

form  of 172 

service  of 172(a) 

for  what  term  to  be  given 172(a) 

on  exception? 173(a) 

reserving  further  consideration  on.  180(c),  181,  n.,(a) 

retaining  bill  at,  with  leave  to  bring  action — 

decretal  order  for..  177 

in  what  cases  allowed 177(6) 

does  not  admit  complainant's  equity 177(6) 

in  case  of  dower 177(6) 

ejectment 178,  n. 

specific  performance 178,  n. 

when  whole  equity  is  before  the  court 178,  n. 

in  case  of  default  in  bringing  action 17S(a) 

rule  for 171 

setting  down  for— 

for  what  term  to  be 171(a) 

time  for,  on  bill  and  answer 171(a) 

])riority  of  causes  on 1'1(«) 

issue  upon  plea 171(a) 

for  argument  upon  plea  or  demurrer 171(a) 

when  equities  settled 171(a) 

for  what  day  of  term 171(a),  172(a) 

when  court  o])en  for 172(a) 

submission  of  cause  without  argument  at  — 

form  of 173 

how  to  be  made 173(6) 

briefs  on 173(6) 

\'icc  Chancellor,  by — 

notice  of  application  to,  for  day  for 174,  n. 

designation  of  day  and  notice  of 175,  n. 

adjournments  of 175,  n. 

in  case  of  absence  of  material  witness 175,  n. 

3a 


802  INDEX   TO   FORMS   AND   NOTES. 

Hearing — 

Vice  Chancellor,  by —  page, 

argument  at 175,  n. 

mode  of  procedure 175,  n. 

settling  and  signing  report  by,  for  appeal 175,  n. 

advisory  master  same  as  Vice  Chancellor 175,  n. 

order  of  reference  to 176 

statute  as  to  reference  to 176(a) 

order  of  reference  to,  discretionary 176(a) 

application  for,  how  made 176(a) 

proceedings  to  final  decree  before 176(a) 

see  also  "Appeals,"  ante 

"Examination  of  witnesses,  'suppression  of  depo- 
sitions,' "  ante. 
"  Rehearing,"  post. 
Heir-at-law — 

plea  and  answer  by 98 

of  husband  as  a  party  in  foreclosure 342,  n. 

prayer  for  receiver  over  estate  of  testator 539 

decree  for  specific  performance  against 630 

Holiday — 

writs  returnable  on 19,  n. 

in  case  of  pleading  due  on.., 104(a) 

not  to  be  computed  as  time  for  taking  testimony 161,  n. 

execution  sale  not  to  be  on 213(a) 

as  to  Saturday  afternoon 213(a) 

Husband  and  wife — 
answer,  by — 

petition  for  separate  (two  forms) 82 

practice  as  to  separate 82(a) 

order  for  separate 85 

suppressing  separate 86 

joint 104,  104(c) 

separate,  by  leave 104 

in  partition 110,  112 

bills  by- 
introduction  as  co-complainants 2 

by  wife  suing  alone 2 

husband  a  defendant 3 

practice  as  to  joinder  of 3(a),  93(a) 

wife  suing  alone 3(a),  104(^0 

subpoena,  service  of,  on — 

how  made 19,  n. 

in  case  one  is  a  non-resident 28(«) 

Idiots — 

answer  by — 

title  of. 105 

to  be  put  in  by  guardian 105(a) 


INDEX   TO   FORMS   AND    NOTES.  803 

Idiots — 

bill  by —  PAGE. 

introduction  of. 4 

to  be  put  in  by  guardian,  &c 4(a) 

see  also  "  Lunatics,  idiots,  <&c.,"  post. 
Impertinence — 

affidavits,  in 68(a),  278(a) 

definition  of 68(a),  119(a),  120,  n. 

see  also  " Excei)tions,  'answer  to,'  "  ante. 
"  Exceptions,  '  bill  to,'  "  ante. 
Infants- 
absent  defendants  as — 

affidavit  of  non-residence  of 51 

answer  by — 

title  of. 104 

by  adults  and 104 

efiect  of. 104(6) 

by  married  woman 104(6) 

in  partition  suit 106 

appearance  by — 

to  suit 52 

in  foreclosure 50,  n.,  348,  n. 

on  sale  of  land  limited  over 688 

bill  by- 

introduction  of. 3 

statement  of  residence  in 3(6),  4,  n. 

practice  as  to 4,  n. 

costs,  liability  for 4,  n. 

custody  of — 

statute  as  to , 476(a) 

order  for , 479 

decree  against 355(a) 

defence  by 4,  n.,  53(a) 

subpoena,  service  of,  against — 

how  to  be  made. 19,  n. 

in  case  of  concealment 19,  n.,  20,  n. 

see  also  "  Foreclosure,"  ante. 

"  Guardian  ad  litem,"  ante. 
"  Sale  of  lands,  '  infants  of.'  " 

'  limited  over.' " 
Informations — 

introduction  to — 

common  form 6 

where  there  is  a  relator 7 

on  behalf  of  a  hinatic 7 

practice  on — 

wlien  the  suit  concerns  the  state 6(«),  7,  n. 

on  behalf  of  a  lunatic 4(a),  7(a) 


804  INDEX   TO   FORMS   AND   NOTES. 

In  forma  pauperis  — 

see  title  "  Paupers,"  poi^t. 
Ipjnnction — 

affidavits  to  obtain —  pagk. 

to  be  special 16,  16(6),  288,n. 

when  to  be  filed 287,  n. 

to  be  made  before  bill  and  annexed  to 287,  n. 

of  merits 287,  n. 

by  whom  to  be  made 287,  n. 

may  be  dispensed  with  in  interpleader 287,  n. 

to  show  actual  or  apprehended  injury 288,  n. 

what  averments  necessary  in 288,  n. 

ex  parte  may  be  read  by  defendant  before  answer 289,  n. 

forms  of. 16,  296,  299 

in  partition 411 

allowance  of — 

common  order  for 286 

general  principles  governing 286(a),  287,  u. 

court  always  open  to  grant 286(a),  287,  u. 

against  corporation  or  staying  public  work 287,  n. 

to  be  mainly  on  equitable  grounds 287,  n. 

after  answer  filed 289,  n. 

on  behalf  of  attorney-general 289,  n. 

against  whom  issued 291(a) 

in  favor  of  mortgagee  to  restrain  waste 294(a) 

not  allowed  on  prayer  for  account  only 294(a) 

special  order  for 299 

by  master 300(a) 

amendments — 

to  bill,  as  to  prayer  for  process 11(«)>  13(c),  136,  n. 

when  answer  excepted  to 124,  n. 

for  various  reasons 133,  n.,  134,  n. 

second 134,  n. 

application  for — 

pending  appeal,  security  on : 194(a) 

may  be  made  in  term  or  vacation 286(a) 

affidavits  in  support  of. 287,  n. 

general  practice  on 288(o),  (6),  289,  n. 

to  be  made  by  attorney-general,  not  by  relators 289,  n. 

motion  for,  for  what  day  noticed 289,  n. 

in  case  of  special  character 289,  n. 

when  not  allowed  ex  parte 289(a) 

day  for  hearing  rule  to  show  cause 289(a) 

bill  for— 

to  contain  prayer  for  injunction  and  subpoena 13,  13(c) 

verification  of,  to  be  special 16,  16(6),  288,  n. 

must  be  filed 290(6) 

praying  cancellation  of  bond,  &c  ,  and  for 566 


INDEX    TO   FOEMS   AND   NOTES.  805 

Injunction — 

bond  on—  page. 

allowing  injunction  under  rule  127 301 

on  ex  parte  allowance 301(a) 

rule  as  to 301  Co),  302(a) 

statute  as  to 302(a),  303(a) 

on  stay  of  ejectment  suit  after  issue  joined 302 

personal  action  after  judgment 303 

statute  as  to,  on  stay  of  personal  action 303(a) 

on  bill  of  interpleader 303(a) 

prosecution  of 307(6) 

order  for  delivery  of,  for  prosecution  at  law 308 

breach  of — 

not  allowed  on  technical  grounds 19,  n. 

statute  as  to 294(a) 

contempt  for  violating — 

costs  on 49(a) 

counsel  fee  on 49(a) 

fine  on 49(a) 

habeas  corpus  to  produce  contemner , 45(6) 

in  presence  of  Vice  Chancellor 45(a) 

interrogatories  on — 

rule  for  defendant's  examination  on 47 

entry  and  service  of  rule ,..,.     47(a) 

effect  of  neglect  to  enter  rule '!"(«) 

form  of 47 

answer  to , 47 

answers  to  be  ore  tenus 48,  n. 

affidavits  not  received  on 48,  n. 

defence  to,  on 48  n. 

proof  of,  on 48  n. 

settlement  by  master  of. 48,  n. 

report  on 48^  n. 

order  convicting  defendant  on 48 

orders  on — 

to  show  cause 45 

be  signed  by  Chancellor 45(a) 

affidavits  used  to  obtain  to  be  filed 45(a) 

for  attachment 45 

to  wliom  directed 45(6) 

against  party  in  prison 45(6) 

convicting  defendant  after  examinaiimi 48 

writ  of  attachment  on — 

form  of 38 

time  between  teste  and  return 45(6) 

number  of  defendants  in 45(6) 

defendant  to  Ite  retained  in  custody  on 4*!,  n. 


806  INDEX   TO   FORMS   AND    NOTES. 

Injunction — 

contempt  for  violating — 

writ  of  attachment  on —  page. 

endorsement  of. 46,  n. 

to  be  tested  and  sealed 46,  n. 

no  arrest  on  Sunday  under 46,  n. 

after  return-day  of. 46,  n. 

bond  for  appearance  to 46,  n. 

form  of  appearance  to 46 

practice  on  appearance  to 46(a) 

nature  of. 49(o) 

see  also  "  violation  of,"  this  title. 

continuance  of,  pending  appeal 194(a) 

damages  by — 

notice  of  motion  to  ascertain 306 

practice  on  ascertaining 306(ft) 

order  to  show  cause  on  motion  to  ascertain 307 

of  reference  to  ascertain 307,  .307(a) 

ascertaining  and  directing  payment  of 308 

denial  of — 

order  on 290 

endorsement  on  bill  on 290(6) 

dissolution  of — 

defective  jurat  no  cause  for 17(6) 

in  case  no  subpoena  issued 13(c),  20,  n. 

misjoinder  of  husband  and  wife  as  ground  for 93(a) 

allowance  of  plea  is  a 101(a) 

motion  for,  when  plea  stands  for  answer 103(a) 

filing  exceptions  to  answer  as  affecting 122,  n. 

time  for  service  of  notice  of  motion  for 275,  n. 

in  case  of  insufficient  aflidavits  or  answer , 288,  n. 

notice  of  motion  to  dissolve  or  modify 304 

how  and  when  may  be  dissolved 304(a),  305(a) 

papers  used  on  motion  for 304(a) 

affidavits  on  motion  for,  rule  as  to 304(a) 

motion  for,  before  answer 304(a) 

statement  of  grounds  for,  in  notice  of  motion 304(a) 

motion  for,  when  to  be  heard 304(a) 

answer  as  affecting  motion  for 305,  n. 

laches  as  a  ground  for 305(a) 

death  as  a  cause  for 305,  n.,  306(a) 

on  perfecting  answer  on  bill  for  discovery 306,  n. 

order  for 305 

unless  cause  be  revived 306 

on  denial  of  subject-matter  on  discovery 496(a) 

election  between  suit  and  action  on 117(a),  280(a) 


INDEX   TO   F0KM8   AND   NOTES.  807 

Injunction — 

injunction  master —  page. 

petition  to 300 

report  by 300 

designation  of 300(a) 

practice  before 300(a) 

rule  for,  on  allowance  by 301 

insolvent  corporations,  against  — 

bill  for....  529 

order  to  show  cause  vf ith  ad  interim 534 

for 537 

interpleader,  order  for,  on  bill  of 485,  485(a) 

marriage,  to  restrain  record  of 474,  475 

notice  of  motion  for — 

form  of 288 

service  of,  when  defendants  reside  out  of  state. 288(a) 

and  practice  on 289,  n. 

statement  of  grounds  for,  in 304(a) 

order  to  show  cause  on  application  for — 

form  of,  with  restraint 289 

service  of 289(a) 

rule  of  court  regarding 290,  n. 

answer  of  corporation  not  evidence  on 290,  n. 

insolvent  corporations,  in  case  of 534 

parties  against  whom  awarded 291(a) 

perpetual  after  decree 295 

petition  for  — 

to  stay  waste  after  bill  filed 295,  296 

decree..... 297,  299 

where  bill  is  presented  to  a  master 300 

prayer  for  relief  in  bill  for,  to  be  special., 11(a) 

preliminary — 

when  not  granted 288,  n. 

form  of 291 

restraining  action  at  law — 

form  of 292 

ground  of 292(a) 

before  verdict , 292(a) 

in  case  of  manifest  wrong 292(o) 

rule  as  to,  before  answer  filed 292(a) 

after  verdict 302(a),  303(a) 

in  case  of  ejectment  suit 302(a) 

definition  of  Kev.,  "Chancery,"  i;  SO 303(a) 

restraining  order  in  nature  of — 

form 289 

service  of 289(a) 

seconil  writ  of,  wlicn  will  issue 296(a) 


808  INDEX   TO    FORMS    AND    NOTES. 

Injunction — 

service  of —  page. 

mode  of. 291(a) 

time  and  return  of 291(a) 

sheriff,  restraining  official  acts  of 13(c) 

special  prayer  for,  necessary 11("))  13,  13(c) 

subpoena  to  be  taken  out  with '291(a) 

Vice  Chancellor  may  grant 300(a) 

violation  of — 

before  service  of  writ,  when  punishable 291(a) 

attachment  in  case  of 301(a) 

waste,  in  case  of — 

form  of,  to  Slav 293 

to  restrain .' ii93(a),  294(a),  297(a) 

punibhment  for  breach  of,  to  stay 294(a) 

petition  for,  after  bill  filed  to  ttay 295 

verification  of  petition 296 

to  stay  waste  after  decree 297 

verification  of  petition 299 

writ  of — 

preliminary 291 

what  to  contain 291(o) 

when  must  be  issued 291(a) 

service  of,  how  made 291(a) 

to  stay  action  at  law 292 

waste 293 

perpetual  after  decree 295 

Inquiry — 

rules  as  to oO(a) 

affidavit  of 31 

what  constitutes  "diligent  and  careful" 32,  n. 

Inquisition  of  lunacy — 

see  title  "  Lunatics,  idiots  and  drunkards,"  post. 
Insolvent  corporations — 

answer  by 533(o) 

bill  against  — 

for  injunction  and  receiver  of. 529 

statements  in 530,  n. 

claims  against  — 

order  limiting 543 

to  show  cause  in  case  of 544 

extending  time  for  admitting 544(a),  545(a) 

order  admitting 545 

appeal  from  receiver's  refusal  of 550 

creditors  of — 

to  act  by  common  solicitor 530, 

bill  by  "one  for  all 530(a) 


INDEX    TO    FORMS   AND    NOTES.  809 

Insolvent  corporations — 

creditors  of —  page. 

may  unite  in  one  bill 530(a) 

order  limiting 543 

to  show  cause  as  to  claim  of. 544 

practice  on  claims  of 544(a),  545(a) 

order  admitting  claim  of. 545 

deed  of  receiver  of. 546 

exceptions  to  master's  report  on  receiver's  account 550 

final  dividend  and  discharge  of  receiver,  order  for 552 

injunction — 

order  to  show  cause 534 

for 537 

insolvency  of — 

statute  on 529(a) 

how  to  judge  of. 530,  n. 

proof  of. 530,  n. 

inventory,  in  case  of — 

statute  on 536,  n. 

affidavit  to 638 

master — 

reference  to 547 

report  of. 548 

practice  on  return  of  report  of. 548(a),  549,  n. 

exceptions  to  report  of. 550 

orders — 

to  show  cause  for  injunction  and  receiver 531 

appointing  receiver 535 

for  injunction 537 

appointing  receiver  over  railway 541 

limiting  creditors 543 

to  show  cause  to  admit  claim 544 

admitting  claim 545 

confirming  receiver's  sale  of  property 545 

of  reference  to  state  receiver's  account 547 

confirming  sale  of  claims  due 551 

for  final  dividend  and  discharge  of  receiver 552 

discharging  receiver 555 

petition,  in  case  of — 

by  creditor 529(a) 

complainant  for  receiver's  discharge 553 

receiver  for  liis  discharge 554 

practice,  in  case  of — 

on  application  tor  receiver 534((() 

ol)jections  to  master's  reports 548(a) 

ajipeal 551,  n. 

preferences  hy 530,  n. 


810  INDEX    TO   FORMS   AND    NOTES. 

Insolvent  corporations  — 
receiver  of — 

account  of —  page. 

affidavit  to 540 

order  of  reference  to  state 547 

master's  report  on 548 

exceptions  to  master's  report  on 550 

aflSdavits  of — 

to  inventory 538 

account 540 

appeal — 

from  determination  of. 550 

statute  on 550(a),  551,  n. 

statements  in  petition  of. 551,  n. 

issue  on  answer 551,  n. 

procedui-e  on 551,  n. 

appointment  of — 

bill  for 529 

order  to  show  cause  on 534 

notice  of  application  for 534 

practice  on 534(a) 

affidavit  of  service  of. 535 

order  for 535 

statute  as  to 535(a) 

to  whom  refused 536,  n. 

order  for,  over  railroad 541 

attornment — 

notice  to  tenant  by 540 

by  tenant  to 540 

bond  of — 

form 537 

petition  for  vacating 554 

certificate  of — 

form 555 

endorsement 556 

form 556,  557 

deed  of 546 

discharge  of — 

order  for  final  dividend  and 552 

petition  by  complainant  for 553 

receiver  for 554 

order  for 555 

notice  of  application  for — 

form 534 

practice  on 534(a) 

affidavit  of  service  of. 535 


INDEX  TO  FORMS  AND  NOTES.  811 

Insolvent  corporations — 

receiver —  page. 

oath  of. 535(a),  536,  n. 

powers  and  duties  of 535(a) 

sales  by,  orders  confirming — 

of  real  and  personal  property 545 

claims  due 551 

reference  to  master 547 

report  of  master — 

form 548 

practice  on  return  of 5  18(a),  549,  n. 

exceptions  to 550 

restraining  order  against 534 

statute  on — 

text  of. 529(a) 

character  of 529(a) 

object  of, 530,  n. 

Interest — 

rate  to  be  charged  on  bond  and  mortgage 359(a) 

on  decree 359(a) 

calculation  of,  in  case  of  partial  payments 359(a) 

beyond  the  penalty  of  a  bond 359(a) 

on  widow's  quarantine 625(a) 

arrears  of  dower 625(a) 

Inspection  of  documents — 

see  "Papers,  production  of,"  post. 
Interlocutory  decrees — 

Eee  title  "  Decrees,"  ante. 
Interrogating  part  of  bill — 

see  '■  Bill,  '  constituent  parts  of,'  "  ante. 
Interrogatories — 

complainant,  to — 

form 115 

statute  on 115(6) 

rule  on 116,  n. 

order  for,  unnecessary 116,  n. 

notice  of  application  to  compel 116,  n, 

destroying  i)laintiti"s  claim  by 116,  n. 

exceptions  to  answers  to 116,  n. 

contempt  on — 

on  failure  to  answer 115(6) 

third  insufficient  answer 128,  n. 

defendant,  to — 

form 10 

ajjpending  and  making  part  of  bill 10(a) 

efli'ct  of  omitting 10(a) 

general  10(a) 


812  INDEX   TO   FORMS   AND   NOTES, 

Interrogatories — 

defendant,  to  page. 

to  conform  and  relate  to  bill 10(a) 

statute  as  to  annexing  to  bill 10(a) 

how  framed 11,  n. 

when  and  how  to  be  answered 105(b) 

defendant  excused  from  answering 106,  n. 

evidence,  answer  to,  as lOi  (o),  115(6) 

examination  of  defendant  upon — 

efi'ect  of  omitting  to  answer 10(u) 

on  third  insufficient  answer 128,  n. 

order  for 129 

time  of  exhibiting 129(a) 

settling  interrogatories ••  129(a) 

examination  of  witnesses — 
see  that  title,  ante. 

exceptions  to llo.n. 

scandal  or  impertinence  in lib,  n. 

Introductory  part  of  bill  — 

see  "  Bill,  '  constituent  parts  of,'  "  ante. 
Interpleader — 

affidavit  of  non-collusion  on — 

form 484 

practice  as  to 484(a) 

effect  of  want  of 484(a) 

by  several  complainants 484(a) 

solicitor  of  complainant 484(a) 

objection  to  omission  of  or  form  of,  by  demurrer 484(a) 

answer  on 485(a) 

bill  of— 

form  of 480 

necessary  averments  in 480(a) 

time  of  tiling 480(a) 

supplemental,  may  be  filed 486,  n. 

effect  of  dismissal  of. 487(a) 

admission  of  debt  in 487(a) 

costs  on 486,  n.(a) 

death  of  complainant,  effect  of  on 486,  n. 

decree  on — 

interlocutory 485 

procedure  after  interlocutory 485(6) 

final 487 

time  of  making 487(a) 

when  of  course 487(a) 

demurrer,  in  case  of — 

for  want  of  affidavit  and  want  of  equity 94 

not  showing  any  claim  of  right  in  defendant 95 


INDEX   TO    FOEMS    AND    NOTES.  813 

Interpleader — 

demurrer,  in  case  of —  page. 

admitting  debt  due  one  defendant  as  ground  for 480(a) 

certain  defects  not  ground  for 480(rt) 

want  of  affidavit  of  non-collusion  as  ground  for 484(a) 

objection  to  form  of  atBdavit  by 484(a) 

injunction  on — 

bond 303(o) 

order  for 485 

payment  of  money  into  court  as  condition  to , 48o(a) 

issue  at  law  on 487(a) 

payment  of  money  into  court 480(a),  485(a) 

principles  applicable  to 480(a),  485(a) 

procedure  on 485(a),  487(a) 

reference  on 487(a) 

replication 485(a) 

right  to 480(o),  485(a) 

Investment  on  sale  of  land — 

see  "  Dower  and  curtesy,"  ante. 

"  Lunatics,  &c.,  'sale  of  lands,'  "  jjost. 
"New  trustee,"  j^ost. 
"Sale  of  lands,  'infants,  of,'"  post. 
"Sale  of  lands  'limited  over,'  "  j^ost. 
Issue  at  law — 

interpleader,  in 486,  n.,  487(a) 

lunatics,  in  case  of — 

order  for 654 

on  restored  sanity 660(a) 

quieting  title,  on — 

form  of 618 

in  what  county  to  be  tried 618(6) 

statute  on 620(a) 

see  also  "  Feigned  issue,"  ante. 
Joinder  of  parties — 
answer,  in  — 

husband  and  wife 104(c) 

Avhen  interests  are  identical 105(6) 

bill  in- 
general  principles  as  to 3(a) 

of  husband  and  wife 3(o) 

in  case  of  distinct  claims 3(a) 

adverse  interests 3(a) 

of  judgment  and  execution  creditor 5(6) 

in  case  of  no  privity 5(6) 

claims  in  personam 5(6) 

of  executors <>,  u. 

dissenting  administrators 6,  n. 


814  INDEX   TO   FORMS   AND   NOTES. 

Joinder  of  parties —  page. 

ce^tuis  que  trust  and  trustees 2(a),  332,  n.,  341,  n.,  362,  n. 

creditor's  bill,  in 521(a),  527(a),  528,  n.  (a),  530(a) 

demurrer,  as  grounds  for — 

form,  for  want  of. 94 

practice  as  to 94(a) 

see  also  "  Foreclosure,  '  complainant.'  " 
'  defendant.' " 
Jurat — 

form  of,  under  "by  the  complainant  in  person" ....     16 

omission  to  sign  in  case  of  injunction  bills 17(^) 

to  state  correct  time  of  swearing 113(6) 

affiant  to  sign  at  side  of 113(c) 

signature  and  official  character  to  be  added  to 113(d) 

in  case  of  defect  in 114,  n. 

to  answer  of  a  corporation 115 

deposition  of  witness 163,  n. 

Jurisdiction — 

when  process  alone  will  not  give 28(a) 

lost 30(a) 

avoiding  decree  for  want  of. 35(a),  36,  n. 

of  Errors  and  Appeals  after  remittitur 198(a) 

special  cases,  in — 

absent  defendants,  over — 

statute  as  to 24(6),  25,  n. 

in  case  of  defective  notice  to 30(a) 

administration  of  assets  of  deceased  person,  over 594(a) 

assumjDtion  of  mortgage,  over 576(a) 

cancellation  of  instruments,  over 566(o) 

correction  of  mistakes,  over 635(a),  636(a) 

creditor's  bills,  over 512(a) 

directors  of  corporation,  over 580(a) 

discovery  under  the  statute,  over 496(6) 

distribution  of  personal  property,  over 713(a) 

divorce,  over — 

acknowledgment  of  citation  as  giving 21(6) 

statute  on 452(a) 

statement  of  facts  giving,  in  report 461,  n. 

over  alimony 469,  n. 

dower,  over 622(a),  623,  n. 

fraud,  over 558(a),  559,  n.,  606(a) 

habeas  corpus,  over 476(a) 

insolvent  corporation,  over 529(a) 

interpleader,  over 487(a) 

lunatics,  &c.,  over 638(a) 

new  trustee,  over 720(a) 

partition,  over 402(a) 

quiet  title,  proceedings  to,  over 615(a) 


INDEX   TO   FORMS   AND   NOTES.  815 

Jurisdiction — 

sale  of  land,  over —  page. 

of  infants 669(a) 

limited,  over 682(a) 

on  presumed  death 703(6) 

Jurisdiction  clause — 

see  "  Bill  '  constituent  parts  of  "  ante. 

Jury- 
see  "  Feigned  issue,"  ante. 

"  Lunatics,  idiots  and  drunkard,"  post. 

Laches — 

in  case  of  answer  after  decree 34(a),  35,  n. 

dismissal  of  bill  for 118(6),  141(«) 

of  solicitor  as  a  ground  for  opening  decree 143,  n. 

in  case  of  taking  testimony 167(«) 

as  ground  for  dissolution  of  injunction 305(a) 

Letters  of  administration — 

statement  in  bill  as  to  issuing 5(c) 

to  be  issued  before  hearing 6,  n. 

granted  in  a  foreign  state 6,  n.,  318(a),  332,  n. 

Letters  rogatory — 

form  of 155 

statute  and  practice  on 155(c) 

Letters  testamentary — 

need  not  be  set  forth  in  bill 6,  n. 

to  be  issued  before  hearing 6,  n. 

granted  in  a  foreign  state 6,  n.,  318(a),  332,  n. 

Legibility  of  pleadings 1(a) 

Lien — 

of  the  state 12(6) 

on  partition 417(a),  442(a) 

bill  to  free  discovered  property  from 497,  n. 

as  giving  right  to  creditor's  bill 512(a),  513,  n.,  521(a) 

when  creditor  not  to  lose 521(rt) 

sale  of  infant's  land  to  discharge 669(a) 

when  not  atlected  by  sale  of  lands 683,  n. 

sale  of  land  free  from 417(a),  683,  n. 

V)y  executors,  Ac,  to  pay  otK 726(a) 

Lost  instrument — 

allegation  of,  in  bill 8,  n. 

Lis  pendens — 

notice  of 411,  517 

statute  as  to 411(a),  517(a) 

in  foreclosure 343,  n.,  517(a) 

discharge  of HUa),  517(a),  518,  n.,  519,  n. 

time  of  taking  eflect  of 519,  n. 

without  bill  is  a  nullity 519,  n. 

e/iiecl  of  conveyance  after  filing  of 519,  n. 


816  INDEX    TO    FORMS    AND    NOTES. 

Lunatics,  idiots  and  drunkards —  PAGE. 

affidavits  to  petition  in  case  of — 

verification  of. 640 

form 640 

by  whom  made ()40(a),  641,  n. 

on  setting  aside  inquisition 657 

for  sale  of  land  by  guardian 662 

answer 105,  105(a) 

bill,  introduction  to,  by 4,  7 

bond  of  guardian  on  sale  of  lands  of— 

form G65 

statute  on 665(6) 

commission,  the — 

against  an  infant 639(a) 

a  non-resident 640.  n. 

order  for 642 

issuing  of  discretionary 643,  u. 

form  of 643 

rule  on 643(a) 

practice  in  case  of. 643,  n.,  643(a) 

return  to 645 

to  inquire  of  drunkenness 646 

notice  of  executing 647 

rule  on 647(a) 

effect  of  omitting 647(a) 

proof  of  service 647(a) 

oath  to  juror  on 648 

order  for  new 652 

when  to  be  executed: 643(a),  652(a) 

superseding 643(a),  657(a),  658(a) 

see  "petition  for,"  below. 

commissioners,  the — 

eflect  of  death  of. 643(a) 

mode  of  selecting 643,  n. 

master  in  chancery  as.. 643,  n.,  648(a),  (6) 

powers  and  duties  of. 645(a),  648(c),  649(a),  650,  n. 

decree — 

entering  of. 643(a) 

form,  in  case  of  lunacy 654 

dating  and  filing  of 643(a),  654(a) 

confirming  sale  of  lands  of. , 666 

deed  of  guardian  of. 668 

definition  of. 638(a),  639,  n. 

dower,  statutes  on 667,  n. 

examination  of. 647(6),  649(a),  659(6) 

execution  of  commission — 

place  of. 640,  n.,  643(a) 


INDEX   TO    FOEMS   AND    NOTES.  817 

Lunatics,  idiots  and  drunkards — 

execution  of  commission —  page. 

mode  of 645(a} 

notice  to  lunatic,  &c.,  of 647 

rule  on 647(a) 

omission  or  defect  in 647(a) 

proof  of. 647  (a) 

time  of 643(a),  652(a) 

foreclosure — 

lunatic,  &c.,  liaving  interest  to  be  a  party 343,  n. 

in  case  of  party  declared,  pending  suit 343,  n. 

guardian  of — 

suit  by 4(a) 

clerk  as 54(a) 

in  case  of  small  estate 639,  n. 

appointment  of. 654(a) 

assent  of,  to  superseding  commission 658(a) 

appearance  of,  before  master 659(6) 

settlement  with 660(a) 

discharge  of. 660(a) 

petition  by,  for  sale  of  land 661 

affidavit  to...... 662 

order  to,  for  sale  of  lands 664 

bond  of 665 

practice  on  bonds  of 649(a),  665(6),  666,  n. 

account  of. , 666(a) 

non-resident 666(a) 

deed  of 668 

information — 

form  of 7 

practice  on 7(a) 

inquisition,  the — 

of  lunacy  or  idiocy 649 

practice  on 649(a),  650,  n.,  651(a) 

principles  applicable  to 649(a),  650,  n.,  651(a) 

sufficiency  of. 650,  n.,  651(a) 

return  of 643(a),  652(a) 

order  setting  aside  and  for  new  commission 652 

notice  of  motion  for  leave  to  traverse 652 

traverse  of. 653 

mode  of  making  traverse 652(6) 

right  to  traverse 653,  n. 

return  of,  not  found,  order  on 655,  655(a) 

[)etition  by  lunatic  to  set  aside 656 

how  mad c 656(a) 

aflidavi t  to 657 

by  drunkiird  lo  set  aside 657 

3lJ 


818  INDEX   TO   FORMS   AND   NOTES. 

Lunatics,  idiots  and  drunkards — 

inquisition,  the —  page. 

statute  on  setting  aside 657(o) 

•  order  of  reference  to  set  aside 658 

report  on  petition  to  set  aside 659 

order  setting  aside,  in  case  of  lunatic 660 

order  to  set  aside,  in  case  of  drunkard 660 

practice  on  order  to  set  aside 660(a) 

introduction  to  bill  by 4,  7 

issue  in  fact — 

order  for 654 

on  restored  sanity 660(a) 

jury,  in  case  of — 

precept  to  summon 645 

practice  on  summoning 645(a) 

statute  as  to  number  of 645ia) 

compensation  of 645(a) 

challenges  to 645(a) 

return  of  precept  to  summon 646 

oath  to 648 

who  to  administer  oath  to 64S(a) 

verdict  of. 645(a),  649(a),  650,  n. 

new  commission — 

in  case  of  death  of  commissioner 643(a) 

order  for 652 

notice — 

of  executing  commission 647,  647(a) 

motion  for  leave  to  traverse 652 

oaths — 

to  juror 648 

witnesses 648 

who  to  administer 648(o),  (6) 

orders — 

for  commission 64^. 

granting  of. 643,  n. 

filing  of. 643(a) 

setting  aside  inquisition  and  for  new  commission 652 

directing  issue  of  fact • 654 

confirming  return  not  finding  lunatic 655,  655(a) 

of  reference  to  set  aside  inquisition 658 

final,  setting  aside  inquisition,  lunatic 660,  660(a) 

drunkard 660 

on  application  for  sale  of  land 663 

to  guardian  to  sell  lands 664 

petition  for  commission — 

of  lunacy "^^ 

who  may  prefer 639(a),  640,  n. 


INDEX   TO   FORMS   AND   NOTES.  819 

Xiunatics,  idiots  and  drunkards — 

petition  for  commission —  PAGE. 

verification  of 640 

affidavits  to 640 

how  supported 640(a),  641,  n. 

of  idiocy 641,  641(a) 

against  drunkard 642 

who  may  prefer,  in  case  of  drunkard 639(a),  642(a) 

allegations  in 642(a) 

petition  to  set  aside  inquisition — 

by  lunatic 656 

in  whose  name  to  be 656((() 

affidavit  to 657 

by  drunkard 657 

statute  on 657(a),  659(a) 

order  of  reference  on 658 

master's  report  on 659 

order  on,  lunatic 660 

drunkard 660 

petition  for  sale  of  land — 

by  guardian 661 

affidavit  to 662 

prochein  ami — 

residence  of,  in  bill 4,  n. 

suit  by,  wheo  allowed 4(a) 

to  be  appointed  before  decree 56(a) 

publication,  order  of 

in  case  of  non-resident 20,  n. 

reference  to  master — 

on  petition  to  set  aside  inquisition 658 

practice  on 658(a) 

attendance  on 659(6) 

on  application  for  sale  of  land 663 

to  special  master  on  sale  of  land 663(a) 

relator,  as 7(a) 

report — 

of  master  on  setting  aside  inquisition 659 

application  for  sale  of  lands 664 

guardian  on  sale  of  land 665 

statute  on 665(a) 

revivor  on  death  of. 317(a) 

sale  of  land  of — 

I)etilion  for 661 

authority  foi' 661(o),  662,  n. 

affidavit  to  petition  for 662 

order  of  reference  on  application  for 663 

appointment  and  duties  of  special  master  on 663(a) 


820  INDEX   TO   FORMS   AND   NOTES. 

Lunatics,  idiots  and  drunkards — 

sale  of  land  of—  page. 

report  on  reference  for 664 

order  for 664 

proceeds  of,  how  considered 664(a) 

may  be  private 662,  n.,  664(a) 

report  of., 665 

when  report  to  be  made 665(a) 

confirmation  of. 665(a) 

what  estate  vests  on 660(a) 

bond  of  guardian  on 665 

at  what  time  bond  to  be  given  on 665(6) 

filing  of  bond  on , 666,  n. 

forfeiture  and  prosecution  of  bond  on 666,  n. 

decree  confirming 666 

investment  of  proceeds  of 666(a) 

account  of  proceeds  on 666(0) 

payment  of  proceeds  of,  to  non-resident  guardian 667,  n. 

release  of  dower  on 667,  n. 

statutes  on...661(a),  662,  n.,  664(a),  (6),  665(a),  (6),  666(a),  667,  n. 

deed  of  guardian  on 668 

setting  aside  inquisition — 

petition  for,  by  lunatic 656 

in  whose  name  proceedings  had  for 656(a) 

affidavit  in  case  of 657 

petition  for,  by  drunkard 657 

.    statute  on 657(a) 

practice  on,  in  case  of  drunkard 657(a) 

order  of  reference  on 658 

practice  on  reference  on 658(a) 

notice  on 658(a) 

report  on 659 

witnesses  on  proceedings  for 659(6) 

order  for,  in  case  of  lunatic 660 

drunkard 660 

subpoena  for  witnesses,  on  commission  for 648 

warrant  to  produce • 647 

witnesses — 

oath  to ". 648 

who  administers  oath  to 648(6) 

compelling  attendance  of. 648(c) 

power  of  commissioners  over 648(c) 

subpcena  for 648,  648(c) 

Mailing  of  notice — 

when  not  done  in  time 30(a) 

proof  of 31 

practice  on 31(a) 


INDEX   TO   FORMS   AND   NOTES.  821 

Mailing  of  notice —  page 

defect  in  affidavit  of. 31(a) 

amendment  of  proof  of 32  n. 

effect  of  non-delivery  in  case  of 26  n.  32  n. 

Married  women — 

custody  of  children  by 476(a) 

demurrer — 

misjoinder  of  husband  and  wife  as  ground  for 93(a) 

foreclosure — 

when  christian  name  unknown — 

affidavit 330 

statute  on 330(a) 

of  mortgage  owned  by 332  n. 

inquisition  of  drunkard — 

not  to  petition  for,  against  husband 639(a),  640,  n.,  642(a) 

next  friend,  when  to  sue  by 3(a) 

suit  by 3(,,)^  104(d) 

see  also  "Husband  and  wife,  'answer  by.'" 
'bills  by.'" 

'  subpoena,  service  of.'  " 
Master's  account — 

on  sale  of  land  limited  over ggy 

Master's  receipt  on  distributive  share  in  partition 431 

Master's  reports — 
contempt — 

on  attachment  for 48  q. 

distribution  of  personal  property — 

on  petition  for 715 

divorce — 

for  desertion 460 

adultery 4g2 

dower 625(6) 

dower  and  curtesy — 

as  to  sum  in  gross 449 

on  amount  to  be  invested 45I 

exceptions — 

to  bill 63 

answer 123 

as  to  sufficiency  of  defendant's  examination 129 

foreclosure — 

of  sale  of  mortgaged  premises 235 

where  there  is  no  order  of  reference 352 

mortgage  due  and  infant  defendants 355 

where  money  not  all  due 359 

for  sale  of  residue 360 

injunction — 

on  granting 300 

ascertaining  damages  on 308 


822  INDEX   TO   FORMS   AND   NOTES. 

Master's  reports — 

insolvent  corporations —  page^ 

on  account  of  receiver  of 548 

lunatics,  idiots,  &c. — 

on  petition  to  set  aside  inquisition 659 

application  for  sale  of  land  of. 664 

new  trustee — 

on  petition  for , 725 

partition — 

that  sale  is  necessary 415 

of  sale  in 421 

that  partition  can  be  made 436 

redemption  of  mortgaged  premises,  on 384(a} 

sale  of  land — 

infants,  of  on  i^etition  for 672 

limited  over — 

on  petition  for 689 

of  sale 692 

as  to  investment  of  proceeds 694 

of  investments ....  697 

allowance  on  particular  estates 697 

on  presumption  of  death — 

on  petition  for 706 

strict  foreclosure  on 396 

surplus  money — 

on  petition  for 259 

by  administrator , 268 

Master's  statement — 

on  adjournment  of  sale 220 

sale  of  mortgaged  premises 233 

partition 434 

Master's  summons — 

exceptions  to  bill,  on — 

form  of 62 

affidavit  of  service  of. 63 

foreclosure,  on — 

against  encumbrancers 107(6) 

form  of 354 

service  of,  how  made 354(a) 

surplus  money,  on  petition  for 258(a) 

Minors — 

see  "  Guardian  ad  litem,"  ante. 
"  Infants,"  ante. 

"Sale  of  lands,  'infants,  of,'"'  post. 
Misjoinder — 

demurrer  for — 

of  complainants 91,  n.,  93,  n-. 


INDEX   TO   FORMS   AND   NOTES.  823 

Misjoinder — 

demurrer  for —  PAOE. 

of  husband  and  wife 3(a),  93(a) 

causes  of  action 3(o),  5(/>),  93(a) 

general  principles  as  to 3((x) 

Mistake  in  instrument,  reformation  of — 

in  case  of  mortgage 334(a) 

decree  for,  in  case  of  mortgage 635 

a  trust  deed 636 

power  of  equity  over 635(a),  636(a) 

practice  as  to , 636(a) 

Mortgage- 
answer  of  second  mortgagee  on  foreclosure  of. 107 

assignment  of — 

allegation  of,  in  bill 8  n. 

assignor  and  assignee,  in  foreclosure 331(a) 

by  writing  not  under  seal 331(a) 

delivery 331(a) 

assignment  of  bond  as 331(a) 

as  evidence  of  consideration  paid 331(a) 

assumption  of — 

as  to  decree  for  deficiency 220(a) 

bill  for : 576 

right  to  sue  on , , 576(a),  579(a) 

contesting  validity  of,  after  decree 362  n. 

decree — 

canceling 634 

reforming  so  as  to  convey  fee 635 

to  confer  power  of. 636 

on  usurious 637 

executors,  &c.,  may  execute 669(a),  726(a) 

extension  of  time  of  payment  of,  by  parol 351  n. 

extinguishment  of 336  n. 

forfeiture  of — 

to  be  explicit 35J   q. 

in  case  of  acts  of  complainant.. 351  n. 

on  ground  of  mistake 351  n. 

receipt  of  interest  as  a  waiver  of 351,  n. 

mistakes  in 334(a),  635(a) 

set  off  to,  what  may  be 107(i) 

see  also  "Foreclosure,"  <uite. 
Motions — 

costs  on — 

order  for,  on  abaudnnnient  of. 276,  276(a) 

successful  parly's  riglit  to 276,  n. 

rules  as  to 276,  n.,  (a) 

days  fur 2U,  n.,  275,  n. 


824  INDEX   TO   FORMS   AND    NOTES. 

Motions — 

notice  of —  page. 

common  form...    273 

definition  of. 274,  n. 

entitling  of. 274,  n. 

address  of. 274,  n. 

signing  of. 274,  n. 

in  case  of  in  forma  pauperis 274,  n. 

day  for,  to  be  certain 274,  n. 

by  leave  of  court 274,  n. 

service  of 274,  n. 

when  no  time  fixed  bylaw 274,  n. 

time  of  service  of. 275,  n. 

as  to  dissolving  injunctions 275,  n. 

statements  in 275,  n. 

when  may  be  dispensed  with 275,  n. 

right  to  make — 

by  any  party  to  the  record 275,  n. 

attorney-general  on  information 289,  n. 

service  of  notice  of — 

affidavit  of. 275 

practice  as  to 275(a),  276,  n. 

admission  of. 276,  n. 

see  for  notices  of  motion  in  special  cases  "  Notices,"  post. 
Multifariousness — 

demurrer  for 93 

what  constitutes 90,  n.,  93(a),  497,  n. 

IName — 

statement  of  correct,  in  introduction  to  bill 2(a) 

suit  to  be  in  name  of  real  party  in  interest 2(a) 

of  corporation  in  prayer  for  process  against 13(6) 

counsel  to  bill 15(a) 

defendants  in  subpoena 20,  n. 

signing  of,  by  defendant  to  answer 113(c) 

officer  to  jurat 17(6),  113(cZ) 

christian,  of  married  woman,  when  unknown  — 

affidavit  as  to 330 

statute  on 330(a) 

proceeding  in,  of  complainant — 

order  to  show  cause  on 139 

rule  on 139(a) 

practice  on 139(a) 

effect  of. 139(a) 

order  on 140 

Ne  exeat — 

account,  in  suit  for 14(a),  309(a) 


INDEX   TO   FORMS   AND   NOTES.  825 

JSfe  exeat—  page. 

affidavits  to  obtain — 

time  of  making 14(a) 

necessary  averments  in 14(a) 

in  case  of  alimony 14(a),  309(a) 

of  wife,  when  sufficient 14(a),  309(a) 

upon  information  and  belief. 14(a),  309(a) 

must  show  sum  due 14(a),  309(a) 

positiveness  of  statements  in 309(a) 

must  show  intent  to  avoid  jurisdiction 14(a),  309(a) 

form  of. 309 

application  for l-4(a) 

bond  on — 

direction  as  to  amount  of. 311^  n. 

sheriff  to  take,  as  directed 31]^  n. 

in  suit  against  a  personal  representative 311,  n. 

order  for  sum  actually  due 311,  n. 

amount  of 310(a),  312(6) 

common  form  of 312 

form  under  rule  192 313 

rule  on 313(a) 

cancellation  of. 314  n. 

security  to  abide  event 314^  n, 

breach  of 314  n. 

power  of  equity  over 314^  n, 

denial  of. 14(a) 

deposit  in  lieu  of  bail 312(a) 

discharge  from — 

affidavits  on  motion  for 14(a),  313(6) 

grounds  for 14(a),  313(6) 

notice  of  motion  for 313 

time  of  applying  for 14(rt),  313(6) 

defendant  to  have  benefit  of  sworn  answer 14(a),  313(6) 

when  refused 313(6) 

on  security  to  abide  the  event 314,  n. 

upon  giving  security  or  making  deposit 309(a),  314,  n. 

divorce,  in  suit  for .' 14(a),  309(a) 

equitable  demand  as  ground  for 14(^0 

grounds  of  application  for 14(«),  309(a) 

non-resident,  against 14(a) 

order  for — 

form 310 

.statement  of  amount  of  bail  in 310(o) 

petition  for — 

ajjplication  for  writ  may  be  made  by 15,  n. 

without  prayer 15,  n. 

no  amendment  of  bill  on 15  n. 


826  INDEX   TO   FORMS   AND   NOTES. 

Ne  exeat —  page. 

prayer  for 14 

presence  in  state  as  giving  right  to 14(a) 

return  to — 

on  arrest  and  security  given 312 

when  defendant  not  found 312 

on  arrest  and  commitment 312 

statute  on 309(a) 

time  of  issuing 14(a) 

writ  of — 

not  to  issue  until  bill  filed 14(rt) 

unless  sum  due 14(a) 

on  service  of,  no  subpama  necessary 14(a) 

form  of 310 

endorsement  of. 310(6),  311,  n. 

New  execution  on  death  of  sheriff — 

see  "Execution,"  ante. 
New  matter — 

when  may  be  set  up  in  supplemental  answer 106,  n. 

see  also  "Eeview,  bills  of,"  post. 

"Supplemental  bills,"  'post. 
Newspapers — 

absent  defendants — 

publication  against,  in 25,  n. 

in  foreclosure  suits , 27(a) 

error  in  name  of 30(a) 

execution — 

advertisement  in,  of  adjournment  of  sale  under 213(a)- 

of  sale  under 217 

statute  on  advertisements  under 21"(rt),  218,  n.. 

partition — 

advertisement  in,  of  lands  sold  free  of  dower,  &.c 417(a) 

proof  of  advertisement  in,  annexed  to  report  in 424(a) 

defective  advertisements  in 424(a) 

New  parlies — 

supplemental  bill  against 503 

see  also  "Admission  of  parties,"  ante. 
New  trial  of  issue  at  law — 
feigned  issue,  on — 

notice  of  motion  for 250 

practice  and  grounds  for  granting 250(o),  (6),  251,  n.,  (a),  (6) 

order  denying 251 

granting 251 

quieting  title,  on 620(o) 

New  trustee — 

petition  for  appointment  of. 720 


INDEX    TO    FOEMS    AND    NOTES.  827 

New  trustee —  page. 

remedy  in  equity  as  to 720(a) 

notice  of  application  for  appointment  of. 724 

order  of  reference  on , 724 

rule  on  appointing 720(6),  724(a) 

master's  report 725 

order  appointing 726 

statutes  on 720(6),  721,  n.,  722,  n.,  726(a) 

Next  friend — 

infants,  in  case  of — 

introduction  to  bill  by 3 

description  and  residence  of,  in  bill 4,  n. 

effect  of  filing  bill  without 4,  n. 

amendment  of  bill  of,  by  inserting  name  of 4,  n. 

guardian  as 4,  n. 

to  sue  by,  notwithstanding  guardian 4,  n. 

English  practice 4,  n. 

New  York  practice 4,  n. 

commencement  of  suit  by 53(a) 

non-resident,  to  give  security  for  costs 69,  n. 

on  appeal  by 187,  n. 

lunatics  and  idiots,  in  case  of — 

introduction  to  bill  by 4 

description  and  residence  of,  in  bill 4,  n. 

authority  of,  to  file  bill 4(a) 

dismissal  of  bill  filed  by  volunteer 4(a) 

appointment  of,  on  court's  motion 57,  n. 

married  women,  in  case  of — 

introduction  to  bill  by 3 

husband  as 3(a) 

amendment  of  bill  of,  by  inserting 3(a) 

when  may  sue  without 3(a) 

address  of,  to  be  stated  in  bill 3(a) 

Non-joinder — 

creditor's  bill,  in  case  of — 

statement  of  parties  in 5,  5(6) 

effect  of 521(a) 

demurrer,  for  — 

form  of 94 

practice  on 94(a) 

Non-residents — 

administrator  or  executor 6,  n. 

writ  of  ne  exeal  against 14(a) 

mode  of  acquiring  jurisdiction  over 24(6) 

efl'ect  of  sub|)<i'na  against,  on  jurisdiction 28(a) 

lunatic 640,  n. 


828  INDEX   TO   FORMS   AND   NOTES. 

Non-residents —  page. 

guardian  of  lunatic,  paj^ment  to 667,  n. 

and  ward,  removal  of  property  of 700(a) 

defendants,  see  ''Absent  defendants,"  ante. 
complainants,  see  "  Security  for  costs,"  post. 
witnesses,  see  "  Examination  of  witnesses,"  ante. 
Non-residence — 

form  of  affidavit  of.  23 

sheriff's  return  of. 23(6) 

affidavit  of,  to  state  true  residence 23(6) 

"  information  and  belief"  of. 24,  n. 

affidavit  of,  in  case  of  infants 51 

as  a  ground  for  stay  of  proceedings 559,  n. 

see  also  "  Security  for  costs,"  post. 
Notice — 

absent  defendants,  to — 

common  form  of. 30 

in  divorce  case 31 

admission  of  parties,  on — 

of  application  on  petition  for 285 

appeal,  of — 

form  of 186 

of  argument  in  Court  of  Appeals 196 

creditor's  bill,  on — 

of  motion  for  receiver 519 

dismissal  of  bill — 

of  motion  for,  for  want  of  prosecution 141 

examination  of  witnesses,  as  to — 

of  motion  for  order  de  bene  esse 145 

examination,  (/e  bene  esse 146 

motion  for  commission 148 

by  part  of  commissioners  to  the  others 156 

of  domestic  witness  under  ^  25 159 

taking  depositions  within  the  state 160 

using  documentary  evidence 165 

motion  to  extend  time  for 166 

suppress  deposition 169 

exceptions — 

answer,  to — 

of  defendant's  submission 125 

bill,  to— 

of  hearing  upon 67 

execution  of  decree — 

and  demand  of  possession 203 

of  motion  for  order  of  possession 206 

writ  of  assistance 208 


INDEX   TO   FORMS   AND   NOTES.  829 

Notice — 

feigned  issue —  page. 

of  motion  for,  under  the  statute 243 

new  trial  of. 250 

hearing  for  further  directions  after 252 

general  principles  of — 

definition  of 273(a),  274,  n. 

entitling  of 274,  n. 

address  of. 274,  n. 

signing  of. 274,  n. 

in  case  of  in  forma  pauperis 274,  n. 

day  for,  to  be  certain 274,  n. 

of  motion  by  leave 274,  n. 

service  of 274,  n. 

when  no  time  fixed  for 274,  n. 

for  what  day  notice  to  be  given 274,  n. 

rule  as  to  motion-days.. 275,  n. 

time  of  service  of. 275,  n. 

statements  in 275,  n. 

when  may  be  dispensed  with 275,  n. 

who  may  give 275,  n. 

aflidavit  of  service  of,  of  motion 275 

service  of,  how  proved 275(a),  276,  n. 

costs  on  failure  to  proceed  after 276(a) 

guardian  ad  litem,  as  to — 

to  infant  defendant  over  fourteen  years 49 

under  fourteen  years 50 

hearing — 

of  bringing  on  cause  for 172 

injunction — 

of  motion  for ., 288 

to  dissolve  or  modify 304 

ascertain  damages  on 306 

insolvent  -corporation — 

of  application  for  receiver  for 534 

lis  pendens,  of — 

in  partition 41 1 

on  creditor's  bill 517 

lunatics,  idiots  and  drunkards,  in  case  of — 

of  executing  commission 647 

motion  for  leave  to  traverse  inquisition 652 

motion,  of. 273 

ne  exeat,  of  motion  for  discharge  of 313 

new  execution— 

of  presenting  petition  for 228 

new  trustee — 

of  application  for  appointment  of. 724 


830  INDEX   TO   FORMS   AND   NOTES. 

Notice — 

partition,  in —  page. 

to  tenant  in  dower  or  curtesy 417 

payment  of  money  into  court,  as  to — 

of  motion  for,  upon  admissions 137 

production  of  papers — 

of  motion  for 76 

rehearing — 

of  presenting  petition  for 185 

sale  of  land  limited  over,  on — 

to  owners  of  vested  or  prospective  estates 684 

of  application  for  appointment  of  guardian  on 687 

taking  testimony  on 688 

application  for  removal  of  ward's  property 702 

State  of  New  Jersey,  to 22 

surplus  money — 

of  application  by  executors,  &.C.,  for 265 

Oaths — 

answer,  to — 

by  defendant  on  commission  to  take 88 

who  may  administer  out  of  the  state 113(o) 

christian  religion,  by  person  not  of. 88(6),  152(c/) 

conscientiously  scrupulous  against,  by  person 88(6),  113(a) 

examination  of  witnesses,  on — 

oath  of  commissioners 151 

directions  as  to 152 

form  of 163,  n. 

lunatics,  &c.,  on  inquisition  of — 

form  of,  to  juror 648 

witnesses 648 

by  whom  administered 648(a),  (6) 

partition,  in — 

form  of  commissioner's 441 

Opening  decree  — 

on  showing  reasonable  grounds  for 34(a),  35,  n. 

payment  of  costs  on 34(a),  35,  n. 

after  time  to  answer  has  expired  35,  n. 

terms  on 35,  n. 

after  master's  report 35,  n. 

for  want  of  authority  of  solicitor 35(a),  36,  n. 

by  party  in  contempt 40,  n. 

when  answer  shows  ground  of  defence 81(o) 

in  case  of  solicitor's  laches 143,  n. 

when  answer  shows  no  ground  of  defence 34(a),  349,  n. 


IJSDEX   TO   FORMS   AND   NOTES.  831 

•Orders — 

abatement  and  revivor,  on — 

representatives,  orders  reviving  as  to —  page. 

of  defendant 316 

sole  complainant 317 

complainant,  by  defendant 318 

his  representative 318 

sole  defendant , 319 

co-complainant 320 

dismissal  against 321 

survivors,  orders  reviving  as  to — 

in  favor  of  co-complainants 314 

against  co-defendants 316 

absent  defendants,  in  case  of — 

of  publication,  common  form 24 

in  foreclosure 27 

partition. 28 

case  of  supposed  death 29 

for  supersedeas 33 

administration  ad  prosequendum,  in  case  of — 

form  of. 59 

admitting  administrator  as  defendant 60 

admission  of  parties,  for 285 

amend  bill,  to — 

for  leave  to,  after  demurrer  sustained 102    , 

filed 132 

plea  allowed 134 

and  withdraw  rejilication 134 

under  rule 135 

after  answer 135 

.  answer,  in  case  of —     ' 

to  take  without  oath 80 

for  wife  to  make  separate 85 

suppressing,  of  married  woman's 86 

for  time  to 81,  86 

commission  to  take 86 

-compel,  to — 

common  form 36 

to  answer  or  for  attachment 37 

for  attachment 38 

alias  attachment 41 

leave  to  prosecute  bond  at  law 41 

after  admission  of  contempt 41 

for  commitment 41 

a  sequestration • 43 


832  INDEX   TO   FORMS   AND   NOTES. 

Orders — 

appeals —  page. 

to  stay  proceedings  on 189 

show  cause,  on  summons  and  severance 190,  191 

of  severance , 192 

for  execution  notwithstanding 194 

for  costs  on  affirmance  on 201 

to  pay  over  money  deposited  on 201 

conduct  of  cause  by  defendant — 

to  show  cause  on 139 

proceed  on 140 

contempt  for  violating  injunction — 

to  show  cause  on 4-y 

for  attachment  on 45 

defendant's  examination  on 47 

convicting  defendant  of. 48 

costs,  for — 

on  non-attendance  at  hearing  of  motion 27G 

creditor's  bill — 

admitting  creditor  as  a  party 528 

cross-bill,  in  case  of — 

to  stay  proceedings 511 

that  original  and  cross-bill  be  heard  together 511 

demurrer,  on — 

sustaining 101 

overruling,  on  default 102 

argument 102 

discovery,  for 501 

dismissal  of  bill — 

by  complainant  for 140 

for  want  of  prosecution 142 

distribution  of  personal  property — 

of  reference  on  petition  for 715 

to  make,  to  legatees 719 

divorce,  in  case  of — 

of  reference,  on  ex  jMrle  proceedings 459 

as  to  alimony 467 

for  alimony 467 

security  for  costs  on  bill  for  alimony 473 

dower  and  curtesy — 

of  reference  as  to  dower 449 

election  between  suit  and  action — 

form  of. 117,279 

examination  of  witnesses — 

d%bene  esse  foreign,  on  notice 146 

for  commission  de  bene  esse 148 

witness  to  show  cause  for  disobedience 157 


INDEX   TO   FOBMS   AND   NOTES.  833 

Orders — 

examination  of  witnesses —  •  page. 

extending  time  for,  under  the  rules.. 166 

not  under  the  rule ..    166 

to  close  testimony 167 

for  re-examination 168 

suppressing  deposition 169 

for  proofs  ex  parte 170 

exceptions,  on — 

answer,  to — 

referring 122 

for  scandal,  &c 123 

nisi  to  conlirm  report  on 124 

for  hearing,  to  master's  report  on 126 

further  answer  on  report  on 126 

referring,  on  second,  &c.,  answer 127 

for  attachment  on  third  insufficient  answer 128 

examination  of  defendant 129 

to  take  bill  as  confessed 130 

confirming  master's  report  on 130 

to  expunge,  on  report  on 131 

submission 132 

bill,  to- 
referring 62 

nisi  to  confirm  report  on 64 

for  hearing,  to  master's  report 66 

confirming  master's  report  on 68 

execution — 

for  fieri  facias  for  deficiency 220 

execution  of  decree — 

for  possession 206 

writ  of  assistance 208 

feigned  issue — 

for,  under  the  statute 244 

at  the  hearing 245 

struck  jury  in  case  of. 249 

denying  motion  for  new  trial  of. 251 

for  new  trial  of. 251 

foreclosure,  on — 

confirming  sale 236 

to  show  cause  on  petition  for  receiver 375 

ap[)ointing  receiver 375 

general  form  of 277 

general  principles  applicable  to — 

entry  of. 277(a) 

drawing  of. 277(a) 

nunc  pro  tune 277(a) 

3c 


834  INDEX   TO   FORMS   AND   NOTES. 

Orders — 

general  princijiles  applicable  to —  page, 

advised  by  master  or  Vice  Chancellor 277(a) 

entitling  of. 277(a) 

statements  in , 277(a) 

computing  time  on 277(a) 

irregularity  in 278,  n. 

vacating 278,  n. 

directions  as  to  time  of  complying  with 278,  n. 

guardian  ad  litem — 

for  appointment  of,  complainant's  application 51 

infant's  application 54 

infant  under  fourteen 56 

habeas  coi'pus,  in  case  of — 

for  custody  of  infant 479 

hearing — 

setting  down  cause  for 171 

for,  of  exceptions  to  master's  report 173 

of  reference  to  Vice  Chancellor  or  advisory  master 176 

for  cause  to  stand  over  to  add  parties 176 

supply  proofs 177 

decretal,  retaining  bill  with  liberty  reserved 177 

injunction,  for — 

common  form..... 286 

to  show  cause  with  restraint 289 

denying 290 

special 299 

on  allowance  of,  by  master 301 

dissolving 305 

unless  cause  be  revived 306 

to  show  cause  on  ascertaining  damages 307 

of  reference  to  ascertain  damages 307 

ascertaining  damages 308 

for  delivery  of  bond 308 

granting,  in  case  of  interpleader 485 

in  suit  against  insolvent  corporation 537 

insolvent  corporation  — 

to  show  cause  as  to  injunction  and  receiver  for 534 

appointing  receiver  for 535 

for  injunction  in  suit  against 537 

appointing  receiver  over  railway 541 

limiting  creditors  of. 543 

to  show  cause  as  to  admission  of  claim  against 544 

admitting  claim  of  creditor  of , 545 

confirming  receiver's  sale  of  property  of. 545 

of  reference  to  state  receiver's  account 547 

confirming  sale  of  claims  due  an 551 


INDEX   TO   FORMS   AND   NOTES.  835 

Orders — 

insolvent  corporation —  page. 

for  final  dividend  and  receiver's  discharge , 552 

discharging  receiver  of 555 

interpleader — 

for  injunction  on  bill  of. 485 

lunatics,  idiots  and  drunkards — 

for  commission , 642 

setting  aside  inquisition  and  for  new  commission ,..,...  652 

directing  issue  of  fact  in  case  of. 654 

on  return  of  inquisition  not  found 655 

of  reference  to  set  aside  inquisition 658 

final,  setting  aside  inquisition  of  lunacy 660 

setting  aside  inquisition  of  drunkenness 660 

referring,  as  to  sale  of  lands  of. 663 

to  guardian  to  sell  land  of. 664 

master,  substituting 282 

Tie  exeat,  for 310 

new  execution,  for 229 

new  trustee — 

of  reference  on  petition  for 724 

appointing 726 

partition — 

extending  time  for  filing  report  in 414 

confirming  sale  in 424 

for  distribution  in , 428 

partnership — 

appointing  receiver  over 538 

payment  of  monev  into  court,  for 138 

plea — 

saving  benefit  of,  till  the  hearing 100 

sustaining 101 

overruling,  on  default 102 

argument 102 

directing,  to  stand  for  answer 103 

poor  persons — 

assigning  coimsel  for  complainant 73 

defendant 74 

proceedings  against  purcliaser — 

to  sliow  cause  on 255 

absolute  on 255 

production  of  papers — 

on  complainant  for 77 

defendant  for 77 

for  inspection  and 80 

redemption  of  mortgaged  premises — 

confirming  report  on 385 

dismissing  bill  for 385 


836  INDEX    TO    FORMS   AND    NOTES. 

Orders—  PAGE. 

rehearing,  for 185 

review,  bill  of — 

for  leave  to  tile 508 

sale  of  lands — 

infants,  of — 

of  reference  as  to  merits  and  for  guardian 670 

to  appoint  guardian  and  for  sale 674 

confirming 679 

limited  over — 

of  reference  on  petition  for 686 

appointing  guardian  for  infants  on 687 

absolute 691 

confirming 693 

for  investment 695 

of  reference  as  to  allowance  to  owners 697 

fixing  allowance  to  owners  of  particular  estates...  699 

for  removal  of  ward's  property 702 

presumption  of  death  on — 

of  reference  on  petition  for 706 

absolute  for 707 

confirming 710 

of  reference  as  to  debts 712 

see  also  "  lunatics,  &c.,"  supra, 
scire  facias — 

to  show  cause  on  petition  for 324 

for  execution  to  issue 325 

security  for  costs,  for 68 

solicitor — 

substituting 281 

that  complainant  appoint 281 

for  dismissal  of  bill  on  failure  to  appoint 282 

speed,  cause  to 118 

strict  foreclosure,  in  case  of — 

final,  upon  default 388 

confirming  master's  report  on 395 

supplemental  bill — 

for  leave  to  file 501 

surplus  money — 

of  reference  on  petition  for 258 

final,  on  petition  for 260 

of  reference  on  petition  of  executor,  &c.,  for 266 

for  payment  of,  to  executor,  &c 270 

Ore  ienus — 

see  "  Demurrer,  'ore  ienus,'  "  ante. 


INDEX   TO   FOKMS   AND   NOTES.  837 

Papers,  production  of — 

general  principles  governing —  page. 

when  order  for,  granted 74(a) 

referred  to  and  made  part  of  answer 74(a),  75,  n. 

admission  of  defendant's  possession 74(0) 

when  defendant  not  entitled  to,  before  answer 74(a),  75,  n. 

cross-bill  necessary  for 75,  n. 

in  case  of  partnership 75,  n. 

at  what  place  to  be  produced 75,  n. 

affidavits  in  opposition,  rule  as  to 76(a) 

contest  as  to  fraud  and  falsity  of 78(a) 

when  deed  not  forthcoming , 78(a) 

complainant  entitled  to 78(a) 

effect  of  admission  in  answer 78(a) 

merits  of  the  question,  how  disposed  of. 78(a) 

applicant's  common  interest 74(a),  79,  n. 

custody  of  papers  in  foreign  country 79,  n. 

when  motion  for,  refused 79,  n. 

admitted  document  to  be  produced 79,  n. 

how  and  where  inspection  to  be  made 79,  n.,  80(a) 

sealed  papers 80(a) 

copies,  when  to  be  furnished 80(a) 

refusal  to  produce,  contempt 80(a) 

attachment  for  refusal  to  produce 80(a) 

notice — 

of  motion  on  petition  for 76 

affidavit  of  service  of. ,,...     77 

orders — 

on  complainant  for 77 

defendant  for 77,  80 

practice  on  obtaining 80(a) 

petitions  for — 

by  defendant 74 

affidavit  to 76 

practice  as  to  verifying 76(a) 

by  complainant 78 

note  as  to  form,  p.  74 78(a) 

necessary  statements  in 78(a) 

Partners — 

examination  of  books  of. 75,  n. 

prayer  for  receiver  over 538 

order  appointing  receiver  over 538 

interlocutory  decree  for  account  ))et\vt'on 627 

partner  not  to  question  liability  to  account 6128(a) 

Parties — 

adverse  interests  — 

between  husljand  and  wife 3(f/) 


838  INDEX   TO   F0EM8   AND    NOTES. 

Parties — 

adverse  interests —  page. 

practice  as  to 3(a) 

incase  of  co-administrators 6,  n. 

amendment — 

by  adding  husband  as  a  party 3(a) 

see  "Amendments,  *  bill  to,' "  ante. 

application  to  be  made — 

time  of  making, 176(6) 

statute  on 176(6) 

Chancellor  as,  designation  of. 1(5) 

complainant — 

suit  to  be  brought  by  real  party  in  interest 2(a) 

husband  and  wife  as 3(a) 

on  bill  relating  to  husband's  rights 3(a) 

general  rules  as  to  joinder  of.. 3(a) 

on  bill  to  protect  wife's  estate 3(a) 

married  Avoman  as 3(a) 

infants,  practice  as  to 3(6),  4,  n. 

idiots  and  lunatics  as 4(a) 

in  creditor's  bill 5(6) 

when  interests  are  distinct 5(6) 

administrator  as 5(c),  6,  n. 

when  the  state  is 6(a) 

attorney-general  as,  on  behalf  of  lunatic 7(a) 

infants,  practice  as  to 3(6),  4,  n.,  53(a) 

executor,  &c.,  of  lunatic 317(«) 

executors,  domestic  as 6,  n.,  332,  u. 

foreign  as 6,  n.,  332,  n. 

cestui  que  truat  and  trustee  as 2(a),  332,  n.,  341,  n.,  362,  n. 

death  of  respondent  on  appeal,  in  case  of 187,  n. 

defendant — 

husband,  on  bill  by  wife 3(o) 

co-administrator  as 6,  n. 

prayer  for  process  as  making 12(a) 

service  of  process  as  making 12(a) 

state  as 12(6) 

married  infant  as 104(6) 

guardian  of  infant  as .4,  n.,  53(a),  104(6) 

husband  and  wife  as  joint 104(c) 

in  case  of  identity  of  interests 105(6) 

lunatic  or  idiot  as 56(a),  57,  n.,  105(a) 

party  having  unrecorded  interest 285(a),  286,  n. 

designation  of  married  woman  as 330(a) 

foreclosure — 

complainants 331(a),  et  seq. 

defendants 340(6),  etseq. 


INDEX   TO   FORMS   AND    NOTES.  839 

Parties — 

see  also  "Abatement  and  revivor,"  ante. 
"Admission  of  parties,"  ante. 
"Amendments,  ^bill,  to,'"  ante. 
"Dismissal  of  bill,"  ante. 
"  Misjoinder  of  parties,'-  ante. 
"Non-joinder  of  parties,"  ante. 
"Partition,  'parties  to,'"  post. 
Partition — 

advertisement  of  sale  on —  PAGE. 

statute  on 417(a) 

proof  of,  by  posters , 423 

in  newspapers 423 

to  be  attached  to  report 424(o) 

defective „...  424(a) 

affidavits  on — 

to  answer 112 

procure  injunction 411 

master's  report 423 

deed 428 

allowances  to  commissioners  on 444(6) 

answers  on — 

by  infants 106 

common  form 110 

short  form 112 

bill  for— 

form  of. 402 

suit  commenced  by 403,  a. 

bonds  on  sale  in — 

guardian's  for  infant's  share  on  sale 430 

refunding  for  share  of  party  absent  or  presumed  dead 431 

statutes  regarding 430(a),  431(a),  432,  n. 

commission  in — 

when  appointed 413^  n. 

after  adverse  report  by  master 41o(a) 

order  appointing  and  decree  in 437 

form  of 439 

oath  of  commissioners 441 

return  of  commissioners 442 

schedule  to 444 

signing  of. 444(a) 

allowance  on 444(6) 

confirmation  of  sale  on — 

in  case  of  private  sale 420(a) 

after  report 420(a) 

order  of. 424 

time  of 424(a) 


840  INDEX    TO    FORMS    AND    NOTEP. 

Partition — 

curtesy  and  dower  on —  paoe. 

notice  to  tenant  in 417 

slatute  on 417(a) 

waiver  of  notice  of  tenant  in 419(/)) 

when  sale  may  be  subject  to 420,  n. 

deed  after  sale  in — 

form  of 425 

acknowledgment  of 427 

certificate  and  affidavit  to 428 

discontinuance  on 421  (n) 

distribution  on — 

in  case  of  inchoate  right  of  dower  406(rt) 

order  for 428 

statute  as  to  distributees 428(a) 

judgment  creditors 428(a) 

receipt  taken  in  case  of..... 431 

release  of  distributee 433 

acknowledgment  to  release  of  distributee 434 

master's  statement 434 

dividing  premises  on — 

mode  of. 402(a),  403,  n. 

criterion  for 415(a) 

by  consent 415(a) 

determination  for,  when  made 418(a) 

statute  on 418(a),  419(a) 

master's  report  for 436 

as  to  part  and  sale  of  residue 402(a),  442(a) 

final  decree  on  — 

for  sale 418 

for  private  sale 420(a) 

for  partition  and  order  appointing  commissioners 437 

confirming  445 

direction  for  mutual  conveyances  in 446(a) 

interlocutory  decree  on 412,  412(a) 

investment  on — 

of  share  of  future  rights 419(a} 

proceeds  of  sale 419(a)- 

for  persons  not  known  to  be  living  or  dead 432,  n. 

jurisdiction  in , .402(a),  403,  n.. 

liens — 

as  afiecting  right  to 404,  n. 

protection  of. 404,  n. 

discharge  of 405,  n. 

in  case  of  inchoate  right  of  dower 406(a) 

sale  of  lands  free  of. 417(a) 

on  part  of  premises  assigned 442(a) 


INDEX   TO   FORMS   AND   NOTES.  841 

Partition — 

lis  pendens  —  page^ 

notice  of. 411 

statutes  on 411(a) 

litigating  title  on 403,  n. 

master's  report  on — 

court  rule  on 412(a) 

objections  to,  how  made 413  n. 

order  extending  time  of  filing 414 

practice  on  extending  time  for  filing 414(6) 

rule  nisi  to  confirm -. 414(6) 

that  sale  of  premises  is  necessary 415 

description  of  premises  in 415(a) 

sale  of  premises 421 

verification  of,  on  sale 423 

proofs  to  be  attached  to ,.  424(a)' 

that  premises  can  be  partitioned 436 

master's  statement  on 434 

order  of  publication  on — 

where  some  or  one  of  the  parties  are  unknown 28 

see  also  "Absent  defendants,"  ante. 

owelty  of. 439(a),  442(rt) 

parties  to  — 

joint  tenants,  &c 402(o) 

executors  with  power  of  sale 402(a) 

infant... 403,  n. 

lunatic 403,  n. 

absent  or  unknown 403,  n. 

encumbrancers 404,  n. 

administrators 404,  n. 

creditors 404  n. 

tenant  in  dower  or  curtesy 405,  n. 

corporation 405,  n. 

contingent  owner 405,  n. 

reversioner 405  n. 

marriage  oi,  pendente  lite 405,  n. 

general  principles  governing 402(a),  403,  n.,  404,  n.,  405,  n. 

statutes  on 402(a),  403,  n.,  404,  n.,  405,  n. 

new 413,  n. 

publication  on — 

in  what  county  to  be  made 26(a) 

at  last  known  place  of  residence 29(a) 

see  "Absent  defendants,"  ante. 

reference  to  master  on — 

on  facts  admitted  in  bill 110(6) 

when  authorized 412(a) 

court  rules  on *112(a),  -113,  n. 


842  INDEX   TO   FORMS   AND   NOTES. 

Partition — 

reference  to  master  on —  page. 

waiver  of  irregularity  in 413,  n. 

effect  of  consent  to 413,  n. 

after  death  of  a  party 413,  n. 

return  of  commissioners  in — 

form 442 

general  principles  governing 442(a) 

errors  in 442(a) 

practice  on 442(a) 

schedule  to 444 

signing  of 444(a) 

recording  of. 446(a) 

review  of  proceedings  on 421(a) 

right  to 402(a),  403,  n. 

sale  on — 

in  case  of  a  particular  estate 402(a) 

right  of  complainant  to  have 402(a) 

mode  of  determining  question  of. 415(a) 

in  separate  parcels 418(a) 

may  be  public  or  private 420(a) 

right  of  purchaser  on 421(a) 

by  master 420(6) 

report  on 421 

verification  to  report  on 423 

order  confirming 424 

when  sale  confirmed 424(a) 

statutes  concerning 402(a),  404,  n.,  405,  n.,  406(a),  417(a), 

418(a),  419(a),  420(a),  (6),  423(a),  424(a), 
428(a),  430(a),  442(a) 

searches,  fees  for 447(a) 

setting  aside — 

on  report  of  sale 420(6) 

appeal  from  order 421(a) 

when  prejudicial 403,  n.,  442(a) 

for  error 442(a) 

.share  on — 

mode  of  estimating 403,  n. 

of  party  absent 428(a) 

lunatic,  &c 442(o) 

general  principles  as  to 439(a),  442(a) 

testimony  on 110(6) 

unknown  owner  in 28,  28(a) 

Paupers — 

appeal,  right  to 187,  n. 

complainants — 

petition  of,  for  assignment  of  counsel 72 


INDEX   TO   FORMS  AND   NOTES.  843 

Paupers — 

complainants —  page, 

statute  on 72(a) 

verification  of  petition 72,  72(6) 

order  assigning  counsel  for 73 

when  notice  of  application  required 73(a) 

in  case  of  divorce 454  n. 

defendants — 

right  to  defend  as 72(a) 

petition  of,  for  leave  to  defend 73 

order  assigning  counsel  for •. 74 

general  principles  and  practice- 
practice  after  answer  filed 73(a) 

privileges  in  case  of. 73(o) 

when  party  may  be  dispaupered 73(a) 

allowances  to.  73(a) 

administrators,  &c.,  cannot  sue  as 73(a) 

notice  of  motion  by 274  n. 

Payment  of  money  into  court — 

notice  of  motion  for,  upon  admissions 137 

to  abide  the  event 137(a) 

at  what  time  application  for,  to  be  made 137(a) 

reasons  for 137(a) 

on  admissions 137(a) 

in  what  particular  cases  made 137(a) 

case  of  insecurity  of  funds 137(a) 

not  unless  due  or  admitted 137(a) 

effect  of  parol  admissions , 137(a) 

upon  answer,  examination  or  report 137(a) 

effect  of  affidavits  on  motion  for 137(a) 

as  to  actual  amount  due 137(a) 

money  in  the  hands  of  executor's  partner 137(a) 

in  case  of  money  in  hands  of  executor  or  trustee 137(a) 

of  actual  balance 138  n. 

in  case  of  vendor  and  purchaser 138,  n. 

specific  performance 138,  n. 

order  for 138 

as  to  principal  and  interest 138(a) 

reasonable  time  to  make 138(a) 

motion  to  rescind  order  for 138(o) 

is  a  collateral  security,  not  payment 138(a) 

afl[idavits  in  support  of  motion  for 138(a) 

in  case  of  bill  to  redeem 138(a),  345(6) 

plea  of  tender 138(a),  345(6) 

foreclosure 345(6) 

suits  on  bond  or  ejectment  in  foreclosure 346,  n. 

on  redemption  of  mortgaged  premises 378,  n. 

,  in  case  of  interpleader 480(a) 


844  INDEX   TO   FORMS   AND   NOTES. 

Perpetuating  testimony —  page. 

bill  for 489 

in  what  cases  bill  may  be  filed  for 489(a) 

necessary  statements  in  bill  for , 489(a) 

prayer  in  bill  for 489(a) 

distinction  between  bills  for  relief  and  discovery 490,  n. 

demurrer  to 491(a) 

interest  of  complainant  in 491(6) 

affidavit  to  bill  for 493 

practice  as  to  affidavit  to  bill  for 493(a) 

defence  to  bill  for 493(a) 

procedure  on 493(a),  494,  n. 

answer  on 494,  n. 

Personal  property,  distribution  of — 

see  "  Distribution  of  personal  property,"  ante. 
Petitions — 

address  of 1(6) 

admission  of  parties,  on — 

to  be  admitted  as  defendant 283 

administration  ad  prosequendum,  for 58 

answer — 

by  wife  for  leave  to  make  separate  (two  forms) 82 

appeal,  of — 

form  of,  to  Court  of  Appeals 194 

creditor's  bill,  on — 

by  creditor  to  be  admitted  as  a  party 527 

distribution  of  personal  property — 

of  application  for..  713 

divorce  — 

in  case  of  adultery 456 

desertion 457 

for  alimony  pendente  lite 465 

foreclosure — 

for  receiver  in 372 

guardian  ad  litem — 

by  infant  over  fourteen  years  for 53 

on  behalf  of  infant  under  fourteen  years  for 55 

habeas  corpus,  for 476 

injunction,  for — 

to  stay  waste  after  bill  filed 295 

decree 297 

master 300 

insolvent  corporations — 

by  complainant  for  receiver's  discharge 553 

receiver  for  a  discharge 554 

lunatics,  idiots  and  drunkards — 

for  commission  of  lunacv 638 


INDEX   TO   FORMS   AND   NOTES.  845 

Petilions — 

lunatics,  idiols  and  drunkards—  page. 

for  commission  of  idiocy 641 

against  habitual  drunkard 642 

to  set  aside  inquisition  of  lunacy 656 

drunkard 657 

by  guardian  for  sale  of  land  of. 661 

new  execution,  for 226 

new  trustee — 

for  appointment  of. 720 

poor  persons — 

by  complainant  for  counsel 72 

defendant  fur  leave  to  defend  as 73 

proceedings  against  a  purchaser — 

to  compel  purchaser  to  complete  purchase 2-53 

production  of  papers— 

form  for 74 

for  inspection  and , 7g 

rehearing,  for 182 

review,  bill  of — 

for  leave  to  tile 507 

sale  of  lands — 

infants,  of — 

for  order  for 669 

limited  over — 

for  order  for 682 

of  non-resident  guardian  for  ward's  property 700 

lunatics,  &c.,  of — 

by  guardian  for 661 

presumption  of  death,  on — 

by  devisee  for 703 

administrator  for  payment  of  debts 711 

scire  facias — 

for  writ  of. , 322 

surplus  money — 

common  form  of. 256 

by  administrator,  &c 262 

writ  of  assistance,  for 204 

Plea—  ' 

constituent  parts  of — 

affidavit  to 92 

certificate  of  counsel  to 92 

btatute  on  affidavit  and  certificate  to 92(a) 

practice  on  omission  of  affidavit  and  certificate  to 92(a) 

title  and  commencement  of. 96 

conclusion  of. 97 

signature  of  counsel  to 97(a) 


846  INDEX   TO    FORMS   AND   NOTES. 

Plea- 
defences  under —  page. 

on  untrue  statement  of  residence  in  bill 2(a) 

single  affirmative,  to  avoid  discovery 96(a) 

several,  by  leave  of  court 96(a) 

what,  may  be  made 97(a) 

former  suit  pending — 

form  of 98 

must  be  in  a  court  of  equity 98(a) 

subject-matter  to  be  the  same 98(a) 

as  to  identity  of  parties 98(a) 

mode  of  pleading 98(a) 

in  another  state 117(a) 

forms  of — 

that  defendant  is  not  personal  representative 97 

and  answer  by  heir-at-law 98 

of  former  suit  pending 98 

by  an  executor 98(a) 

to  the  jurisdiction  by  a  foreign  corporation 99 

issue  on — 

on  reply lOO(o) 

effect  of  determination  on 100(a) 

proof  on 100(a) 

entry  of,  for  argument  after 100(a) 

orders  on — 

saving  benefit  till  the  hearing, 100 

sustaining 101 

overruling,  on  default 102 

after  argument 102 

directing  to  stand  for  answer 103 

principles  and  practice  on — 

sufiiciency  of  averments  to  sustain 96(a) 

leave  to  file,  after  demurrer  overruled 96(a) 

under  order  to  answer,  not  to  file 96(a) 

when  to  be  considered  as  true 100(a) 

definition  and  effect  of  benefit  reserved 100(6),  101,  n. 

United  States  practice  on  allowance  of. 101(a) 

allowance  of,  dissolves  injunction 101(a) 

amending  bill,  not  an  allowance  of. 101(a) 

effect  of  motion  confessing  truth  of. 101(a) 

leave  to  demur  after  overruling  of. 102(a) 

answer  to  be  put  in  after  overruling  of. 100(a),  102(a) 

when  answer  filed  with 102(a) 

replication  to — 

form  of 100 

statute  on lOO(n) 

to  be  put  in  on  allowance  of 100(a) 


INDEX   TO   FOEMS   AND   NOTES.  847 

Plea- 
stand  for  answer,  to —  page.  . 

order  directing 103 

when  court  will  order 103(a) 

amendment  of  plea  or  to 103(a) 

exceptions  on 103(a) 

costs  on 103(a) 

motion  to  dissolve  injunction  on 103(a) 

Plea  and  answer 98 

Pleadings,  legibility  of 1(a) 

Postea — 

see  "  Feigned  issue,"  ante. 
Post-office  address — 

mailing  of  notice  to  absent  defendant's 25,  n. 

affidavit  of  mailing  notice  to 31(a) 

amendment  of  affidavit  as  to 31(a) 

last  known  place  of  residence  as 29(a),  32,  n. 

Prayer  for  process — 

see  "  Bill,  '  constituent  parts  of,'  "  ante. 
Prayer  for  relief — 

see  "  Bill,  '  constituent  parts  of,'  "  ante. 
Premises  or  stating  part — 

see  "  Bill,  '  constituent  parts  of,'  "  ante. 

Printed  cases  and  briefs  on  appeal 197,  197(a) 

Probate  of  will,  statement  of — 

by  what  executors  to  be  made 6,  n. 

necesssity  for,  in  bill 6,  n. 

sufficiency  of,  in  bill 6,  n. 

allegation  of,  before  actual  probate 6,  n. 

Process — 

mesne — 

master's  summons  on  exceptions .' 62 

foreclosure 354 

subpoena  ad  testificandum 156 

on  lunacy 648 

see  also  "  Executions,"  ante. 
original — 

against  Chancellor 1(6) 

issue  and  service  of,  to  make  party 12(a) 

prayer  for — 

common  form 12 

against  United  States  or  state 12 

corporation 13 

in  case  of  injunction 13 

Tie  exeat 14 

subpfX'na  ad  respondendum 18 

endorsement  of  subpa'na  ad  respondendum 20 


848  INDEX   TO   FORMS   AND   NOTES. 

Process — 

original —  page. 

against  the  state 22 

citation  in  divorce 21,  459 

see  also  "  Subpwna,"  post. 
Prochein  ami — 

see  "  Next  friend,"  ante. 

Proclamation  and  commission  of  rebellion  abolished 39(a) 

Pro  confesso,  decree — 

against  absent  defendants 25,  n. 

common  form  of 34 

practice  on.. 34(a),  35,  n. 

on  third  insufficient  answer..  130 

in  foreclosure 350 

see  also  "  Decrees,"  ante. 
'Proofs,  order  for — 

form  of,  ex  parte 170,  170(a) 

to  stand  over  to  supply...., 177,  177(a) 

Publication  of  notice — 

see  "Absent  defendants,"  ante. 
Publication,  order  of — 

against  non-resident  lunatic 20,  n. 

heirs  of  deceased  respondent  on  appeal 187,  n. 

see  also  "Absent  defendants,"  ante. 
Purchaser,  proceedings  against — 

complete  purchase  on  execution  sale,  to — 
orders — 

to  show  cause 255 

absolute 255 

service  of 255(a) 

petition  for 253 

principles  applicable  to — 

power  of  court  over 253(a) 

when  purchaser  may  be  discharged 253(a) 

when  purchaser  not  a  party  to  suit 253(a) 

may  be  ordered  to,  in  a  summary  way 253(a) 

sheriff's  right  of  action  on 253(a) 

measure  of  damages  on  resale 253(a) 

when  resale  may  be  refused 253(a) 

enforcement  of,  by  process  for  contempt 255(a) 

Quieting  title — 

absent  defendants — 

statute  on 617(a) 

see  also  "Absent  defendants,"  ante. 

answer  on * 618(a),  620(a) 

appeal , 621,  n. 


INDEX   TO   FORMS   AND   NOTES.  849 

Quieting  title — 

bill  for—  PAGE. 

form 615 

when  bill  will  lie 615(o) 

statements  in 615(a) 

costs  on 620(a) 

decree — 

form '620 

when  costs  allowed  by , 620(a) 

effect  of. 620(a) 

against  infant 621  n. 

feigned  issue  on — 

form ; 618 

in  what  county  tried 618(5) 

peaceable  possession  as  a  condition  for 618(6) 

statute  on 620(a) 

incorporeal  heriditaments,  in  case  of 615(a} 

jurisdiction  of  chancery  over 615(a) 

occupation  as  giving  right  to 615(a) 

possession  as  giving  right  to 615(a),  618(6) 

rehearing  when  allowed 620(a) 

statute  on 615(o) 

ticket  on  bill  for — 

form  of. 618 

statute  on... 618(a) 

Re-argument — 

practice  as  to 188  n. 

Receivers — 

alimony,  in  case  of. 468(a) 

appeal  from  decree  appointing 188  n. 

appointed  after  pro  confesso,  as  parties 343,  n. 

creditor's  bill,  on — 

notice  of  motion  for 519 

discovery,  on — 

bill,  praying  for  appointment  of 496 

relief  by,  provided  by  statute 497,  n. 

may  file  bill  to  free  property  from  lien 497,  n. 

eflect  of  answer  on  appointment  of 497,  n.,  498,  n. 

appointment  of,  on  master's  report 498,  n. 

authority  of, 498,  n. 

when  appointed  of  course 498,  n. 

statute  on 498  n, 

aflidavit  to  bill  praying  for,  &c.. 50O 

see  also  "  Foreclosure^eceivers,'  "  ante. 

"Insolvent  corporations,  'receivers,'"  ante. 
3d 


850  ODEX   TO   FORMS   AND   NOTES. 

Redemption  of  mortgaged  premises — 

bill  for —  PAGE. 

form  of 377 

offer  to  pay  to  be  stated  in 378,  n. 

costs  on 378,  n.,  384(a) 

decree  for — 

form  of. 384 

directions  in 384(a) 

to  compel  second  mortgagee  to  redeem 628 

setting  aside 629,  n. 

extent  of. 378,  n. 

orders — 

confirming  report  on 385 

dismissing  bill  for 385 

parties  to 377(a),  378,  n. 

payment  on 377(a),  378,  n. 

purchaser  of  equity  of  redemption,  obligation  for 377(a) 

may  call  for 628(6) 

right  of — 

statute  on 345(6) 

persons  having  interest  in  premises 877(a) 

second  encumbrancer 377(a) 

on  tender  and  refusal 345(6),  377(a) 

not  restricted  to  time  or  class 377(a) 

mortgagor's 377(a) 

widow  entitled  to  dower 377(a) 

price  of  purchase-money  as  affecting 378,  n. 

purchaser,  aftertax  sale 378,  n. 

heirs-at-law 378,  n. 

part  owner 378,  n. 

purchaser  at  foreclosure  sale 378,  n. 

to  call  for 628(6) 

time  of — 

not  restricted 377(a) 

direction  in  decree  as  to 384(a) 

discretionary 384(a) 

when  allowed,  not  to  be  enlarged 384(a) 

effect  of  failure  to  redeem  within 385(a) 

Eeferences — 

when  facts  in  bill  are  admitted  in  answer 110(6) 

on  answer  not  setting  up  defence 107(6),  348,  n. 

by  encumbrancer  praying  for  decree 349,  n. 

see  "  Master's  reports,"  ante. 
"Orders,"  ante. 
Eeformation  of  instruments — 

see  "  Mistake  in  instruments,"  ante. 


INDEX   TO   FORMS   AND   NOTES.  851 

iRehearing — 

allowance  of —  page. 

power  of  court  to  grant  before  enrolling 182(6) 

in  the  federal  courts 183  n. 

for  newly-discovered  evidence 183  n. 

error 183,  n. 

to  advance  ends  of  justice 183  n. 

rest  upon  merits  of  the  case 183,  n. 

for  mistake  of  law  or  fact 183,  n. 

on  account  of  absence  of  defendant 183,  n. 

for  complainant's  equity 183  n. 

not  to  be  on  cumulative  evidence 183,  n. 

for  neglect  of  solicitor 183,  n. 

in  Court  of  Errors  and  Appeals , 186,  n. 

is  discretionary 182(6),  186(a) 

appeal  on 188,  n. 

-caveat  against  enrolling  final  decree  — 

form  of 185 

practice  on  filing  of. 185(a) 

certificate  of  counsel  on — 

as  to  granting,  on 183,  n. 

form  of 185 

costs  on 186(a) 

efiect  of,  to  open  whole  case 183,  n. 

notice  of  presenting  petition  for — 

form  of. 185 

practice  on 184,  n.,  185(6) 

order  for — 

form  of 185 

effect  of,  as  a  stay 185(c) 

petition  for — 

form  of 182 

to  be  presented  before  enrolling 182(6) 

signing  of. 183,  n. 

when  by  one  counsel 183,  n. 

statements  in.... 183,  n.,  184,  n. 

service  of  copy  of. 184,  n. 

practice  on — 

opening  and  closing  of  argument  on 183,  n. 

in  Court  of  Errors  and  Appeals 185(c),  186,  n. 

United  States  Supreme  Court 186,  n. 

as  to  terms 186(a) 

quieting  title,  in  case  of. 620(a) 

submission  of  cause  on,  without  argument — 

as  to  signature  of  counsel 183,  n. 

when  granted  of  course 184,  n. 


852  INDEX   TO   FORMS   AND   NOTES. 

Eehearing — 

Vice  Chancellor,  on  decrees  by —  page. 

how  obtained 184  n. 

certificate  on 184  n. 

application  for,  to  whom  made 184  n. 

who  to  rehear 184  n. 

Eelator — 

when  information  exhibited  without 6(a) 

eflect  as  to  costs  when  slate  sues  without 6(a)  7  n. 

introduction  to  bill  with 7 

for  lunatic 7 

practice  as  to,  in  case  of  lunatic 4(a),  "(a) 

may  make  application  for  a  feigned  issue 245(6) 

right  of,  to  move  for  injunction 289  n. 

Release — 

dower,  of — 

form  of. 678 

practice  on 678(6),  679,  n. 

partition,  in — 

by  distributee  to  master 433 

acknowledgment  of. 434 

Eelief— 

bills  for — 

against  a  judgment  at  law — 

form  of. 558 

cancellation  of  judgments 558(a) 

when  bill  will  not  lie 558(a),  559,  n. 

incases  of  attachment 559,  n. 

effect  of  equitable  defence  at  law 559,  n. 

election 559,  n. 

jurisdiction  of  chancery  over  judgments 558(a),  559,  n. 

artifice  and  fraud  as  a  ground  for 558(a),  559,  n. 

non-residence  as  a  stay 559^  n. 

by  next  of  kin  for  distributive  share — 

form 594 

jurisdiction  of  chancery  over  legacies,  &c 594(a) 

grounds  for o94(a) 

by  surety  to  compel  payment  of  debt  by  principal — 

form 588 

subrogation  of  surety , 588(a) 

rights  of  surety  against  princii)al 588(a) 

indemnity  allowed 588(a) 

effect  of  payment  by  surety 588(a) 

when  surety  not  entitled  to  relief. 588(a) 

in  case  of  one  surety  for  several  principals 588(a) 

cancellation  of  bond  and  mortgage — 

form  of 566 


INDEX   TO  FORMS  AND   NOTES.  853 

Kelief— 

bills  for — 

cancellation  of  bond  and  mortgage —  page. 
power   of  chancery   over   cancellation   of    instru- 
ments   566(a) 

assignee  of  bond  subject  to  equities 566(«) 

compelling  payment  of  excess  of  mortgage  debt- 
form  of 576 

jurisdiction  of  equity  over  assumption  of  payment,  576(a) 

right  of  mortgagee  to  decree  for  deiiciency 579(a) 

enforcing  liability  of  directors  of  corporation — 

form 580 

jurisdiction  of  chancery  over  misfeasance 580(a) 

establishment  of  lost  will — 

form  of 602 

examination  of  witnesses  to  will 602(a) 

in  case  of  death  of  witnesses  to  will 602(a) 

satisfactory  proof  required 603,  n. 

as  to  secondary  evidence 603  n. 

setting  aside  conveyance  for  fraud — 

form 606 

definition  of  ejectment  bill 606(a) 

jurisdiction  of  chancery  over 606(a) 

fraud  as  a  ground  of  relief. 606(o),  607,  n. 

in  case  of  intoxication 607,  n. 

for  inadequacy  of  price 607,  n. 

general  principles  as  to — 

effect  of  mistake  of  claim  to 7(6) 

unusual  frame  of  bill  as  affecting 7(6) 

defence  at  law  as  a  bar  to 8  n. 

bill  to  show  grounds  for 7(6),  8,  n.,  9,  n.,  11(a) 

decree  to  conform  to  grounds  of. 361(a) 

prayers  for — 

general — 

form  of 11 

effect  of. 11(a) 

dismissal  of  bill  for  want  of. 142(a) 

amendment  of 343^  n. 

special — 

effect  of. 11(a) 

on  injunction 11(a) 

dismissal  of  bill  for  want  of 142(a) 

amendment  of 11(a),  136,  n.,  343,  n. 

in  case  of  receiver 372(a) 

perpetuating  testimony 489(a) 

for  receiver  over  jjartncrsliip 538 

estate  of  testator 539 

see  also  "Bill,"  ante. 


854  INDEX   TO   FORMS   AND   NOTES. 

Eemoval — 

cause,  of —  page. 

to  United  States  Supreme  Court 198(a) 

persons,  of — 

of  complainant  pending  suit 2(a) 

party  entitled  to  order  to  answer 37,  n, 

sherift'  or  officer 241(a),  242,  n. 

solicitor 281(6) 

ward's  property,  of — 

petition  for 700 

practice  on 700(a),  701,  n.' 

affidavit  to  petition  for 701 

notice  of  application  for 702 

order  for 702 

statutes  on 666(a),  667,  n.,  700(a),  701,  n.,  726(a) 

Eeplication — 

amendments  to  bill  after — 

order  for  leave  to  withdraw 134 

extension  of  time  for  filing 135,  n. 

after  filing 143(a) 

to  be  made  instead  of  filing  special 143(a) 

practice  on 134(a),  144,  n. 

answer,  to — 

general  form 143 

costs  of  motion  to  dismiss  for  failure  to  file 144,  n. 

filing  of — 

cause  at  issue  on 143(a) 

time  of 143(a) 

at  the  hearing 144,  n. 

nunc  pro  tunc 144,  n. 

after  notice  to  dismiss 144,  n. 

the  hearing 174,  n. 

issue  on — 

determination  on 100(a) 

when  cause  at,  on  filing  of. 143(a),  144,  n. 

plea,  to — 

when  must  be  filed 100(a) 

determination  of  issue  on 100(a) 

right  to  file lOO(o),  143(a) 

when  issue  to  be  entered  for  argument  on lOO(a),  143(a) 

form  of 100,  144 

admission  of  sufficiency 144,  n. 

practice  on — 

statutes  on lOO(a),  143(a) 

one  only  to  be  filed 143(a) 

dismissal  of  bill  after  filing  of 143(a) 

withdrawal  of,  in  case  of  amendment 144,  n. 

rules  on , lOO(o),  143(a),  144,  n. 


INDEX  TO  FORMS  AND  NOTES.  855 

Replication — 

principles  governing —  page. 

one  only  allowed 143(a) 

special,  use  of,  discontinued 143(a) 

effect  of  not  filing,  on  truth  of  answer 144,  n. 

denial  of  facts  by 144,  n. 

rule  to  rejoin  unnecessary ,..  143(o) 

special — 

use  of,  discontinued 143(a) 

amendment  to  bill  in  lieu  of. 143(rt) 

subpoena  to  rejoin  unnecessary 143(a) 

supplemental  bills,  to 504(a) 

Reports — 

administrator,  of — 

on  sale  of  land  on  presumption  of  death 709 

guardian,  of — 

on  sale  of  infant's  lands 677 

of  investment  and  disposition  of  proceeds  of  sale 681 

see  "  Master's  reports,"  ante. 
Residence — 

complainant,  of — 

to  be  stated  in  bill 2(a) 

effect  of  misstating 2(a) 

omission  of 2(a) 

in  case  of  no  permanent 2(a) 

change  of,  after  bill  filed 2(a) 

of  next  friend  of  married  woman  to  be  stated 3(a) 

married  woman 3(a) 

infant 3(6) 

lunatic 4,  n. 

next  friend  of  infant,  lunatic,  &c 4,  n. 

defendant,  of — 

service  of  process  at 18(a),  19,  n. 

of  husband  living  apart  from  wife 19,  n.,  28(a) 

information  as  to 24,  n.,  31(rt) 

amendment  of  affidavit  of  mailing  to 32,  n. 

place  named  in  deed  as 32,  n. 

"diligent  and  careful  inquiry  " 32,  n. 

in  ca.se  of  corporation ". 32,  n. 

change  of,  pending  suit 37,  n. 

Restraining  order — 

common  form  of 289 

definition  of. 290(a) 

form  of,  in  case  of  insolvent  corporation 534 

Retaining  bill — 

see  "Hearing,"  <inle. 


856  INDEX   TO   FOKMS   AND   NOTES. 

Keturn  of  subpoena — 

see  "  Subpoena,"  post. 
Review,  bill  of — 

bills,  forms  of —  page. 

for  errors  of  law 509 

on  discovery  of  new  matter , 510 

demurrer  to,  effect  of.. 508(a) 

deposit  on  filing 508(a) 

leave  to  file — 

petition  for 507 

practice  regarding 507(a) 

when  errors  are  apparent 507(a) 

conclusiveness  of  facts  in  petition  for 507(a) 

order  for 508 

effect  of  omission  of. 508(a) 

nature  of. , 507(a) 

practice  on 507(a),  508(a) 

principles  applicable — 

object  of. 507(a) 

when  allowed 507(a) 

effect  of  enrollment  of  decree 507(a) 

new  matter  as  a  ground  for 508(a) 

does  not  stay  pi'oceedings 508(a) 

Eevivor  — 

see  "Abatement  and  revivor,"  ante. 

"  Supplemental  bills,  '  bills  of,' "  post. 
Uules  of  court — 

abandonment  of  suit,  on 90,  n.,  142(a) 

absent  defendants,  in  case  of — 

in  what  county  publication  to  be  made 26(a) 

notice  to 30(a) 

in  case  of  divorce 34(a) 

affidavits — 

used  on  special  motions 279,  n. 

hearing 279,  n. 

on  extension  of  time 279,  n. 

amending  bill — 

when  complainant  may  of  course 132(a) 

after  demurrer 94(a),  133,  n. 

on  overruling  plea  or  demurrer 133,  n. 

when  costs  to  be  paid  on 133,  n. 

copy  of  amendments  to  be  furnished 133,  n. 

answer — 

commission  to  take — 

before  whom  oath  may  be  taken  on 

80(6),  87,  n.,  113(a),  115(a) 
not  raising  a  defence 107(6) 


INDEX   TO   FORMS   AND   NOTES.  857 

Rules  of  court — 
answer — 

proceedings  to  compel  —  page. 

order  for 36(a),  37,  n. 

writ  of  attachment  on .,. 38(6) 

bond  on  attachment  on 39(6) 

appearance  on 39(6) 

examination  of  defendant  in  caae  of 39(6),  40,  n. 

appeal — 

notice  of,  statements  in 188,  n. 

when  process  on  final  decree  not  to  issue  after 1S8,  n. 

service  of  notice  of 189(a) 

from  interlocutory  decree  not  to  stay  suit 189(6) 

order  for  execution  notwithstanding  an 194(a) 

petition  of,  when  to  be  presented 194(6) 

practice  on 194(6),  195,  n. 

answer  to  petition  of 195(a) 

when  to  be  brought  on  and  noticed 196(a) 

effect  of  failure  of  parties  to  appear  on 196(a) 

who  is  considered  as  solicitor  on..,. 196(6) 

order  of  hearing 196(6) 

time  allowed  on 197,  n. 

state  of  the  case  on 197(a) 

points  and  authorities  to  be  furnished  on 197(a) 

costs  on 198(a),  201(a) 

bill- 
charge  of  confederacy  in,  abolished 9(a) 

prayer  for  process  in  (United  States  courts) 12(a) 

amendments  of 12(a) 

to  be  signed  by  counsel 15(«) 

verification  of,  in  case  of  injunction 16(6) 

affidavit  to,  in  case  of  corporation 17(a) 

Chancellor,  when  a  party 1(6) 

conduct  of  cause- 
when  defendant  may  have 139(a) 

practice  by  defendant  on 139(a) 

contempt  for  violating  injunction — 

attachment  on 45(6),  46,  n, 

bond  in  case  of 46,  n. 

appearance  in  case  of 46(a) 

examination  upon  interrogatories  (m 47(a) 

master's  report  on 48,  n. 

cross-bill,  as  to 511,  n. 

decree — 

final — 

when  execution  for  costs  allowed  by 180(6) 

entry  of,  after  final  hearing 180(c) 


858  INDEX   TO   FORMS   AND   NOTES. 

E-ules  of  court — 

decree — 

final —  PAGE. 

objection  to  form  of,  how  waived 179,  n.,  181,  n. 

award  of  costs  in,  how  waived 181,  n. 

when  may  be  enforced 181,  n. 

fro  confesso — 

entry  of 34(a) 

signing  of 34(a) 

demurrer — 

objection  to  bill  without  filing 89(6) 

statement  of  want  of  equity,  when  sufficient 93,  n. 

amendment  of  bill  after 94(a) 

dismissal  of  bill — 

when  to  be  on  notice 140(a) 

for  want  of  prosecution 142(a) 

after  replication  filed  and  proofs  taken 143(a) 

divorce — 

name  of  adulterer  to  be  stated  in  the  bill 453(a) 

taking  of  evidence  in 455(a) 

reference  to  be  to  special  master 459(6) 

when  no  reference  will  be  ordered 459(6) 

report  of  facts  on  desertion 460(a),  461,  n. 

signing  of  decree  on 463(a) 

dower  and  curtesy — 

computation  of  gross  sum  to  be  paid  on 449(o) 

examination  of  witnesses  — 

notice  of  application  for  commission  on 146,  n. 

application  for  commission  after  cause  at  issue 147(a) 

practice  on  commission  for 148(a) 

nomination  of  commissioners  for 148(6) 

return  of  commission  on 149(a) 

names  of  witnesses  in  commission 150(a) 

interrogatories  to  be  furnished  150(a) 

subpoena  ad  testificandum 156(6),  157,  n. 

mode  of. 160(a) 

when  to  be  commenced  and  closed 160(a) 

issue  joined  on  plea 160(a) 

what  examiner  may  take  testimony 160(a) 

testimony  in  rebuttal 161,  n. 

adjournment  on 100(a),  161,  n. 

extension  of  time  for 161,  n. 

computation  of  time  on 161,  n. 

stenographer's  fees  on 162,  n. 

deposition  on,  how  taken  down 162,  n. 

exhibits  on... 162,  n. 

form  and  requisites  of  deposhion  on 162,  n.,  163,  n. 


INDEX   TO   FORMS   AND   NOTES.  859 

Eules  of  court — 

examination  of  witnesses —  page 

filing  of  depositions  on Ig3  ^ 

as  to  agreement  of  examiner 161  n.    164  n. 

before  Vice  Chancellor  or  advisory  master 164,  n.,  165,  n. 

as  to  documentary  evidence 165(«) 

de  bene  esse  within  the  state 165(6) 

extension  of  time  for 161,  n.,  166(a) 

affidavits  used  on,  practice  as  to 166(6),  167  n. 

to  extend  time  for , 167  n. 

cause  to  be  noticed  for  hearing  after ,..,.  168  n, 

when  proceedings  to  be  ex  parte 170(a) 

before  examiner  in  business  with  party 283  n. 

exceptions — 

answer,  to — 

as  to  scandal,  &c 119(o) 

practice  on 120  n. 

reference  on,  to  one  master 120  n. 

when  to  be  taken.. 122(«),  123,  n. 

amendment  of  bill  after  report  on 124  n. 

submission  to 121,  n.,  125(«) 

practice  after  submission  to 125(a) 

failure  to  consent  to  expunge  on  submission 125(6) 

bill,  to— 

how  taken 61(a) 

service  of  copy  of. 61(a) 

reference  to  master  on 61(a) 

be  to  one  master 61(a) 

submission  to 61(a) 

objection  to  bill  without  filing 61(a),  62,  nl 

reference  and  practice  on 62(a) 

report  on 63(«) 

procedure  on  reference  on 63(a) 

on  what  day  may  be  set  down  for  hearing 65(a) 

setting  down  for  hearing 65(a),  66(a),  67,  n. 

notice  of  setting  down  for  hearing 67,  n. 

interrogatories,  to 116  n. 

execution — 

when  complainant  entitled  to 210(a) 

directed  to  sheriff. 210(a) 

master 210(a) 

for  costs 214(a) 

return  of,  by  sheriff.. 212(6),  233(a) 

report  of  sale  of  land  under 235(a) 

foreclosure — 

what  bill  for,  to  contain 335(a) 

bond  and  mortgage  not  to  be  set  out  in  hill  for 33(!,  n. 


860  INDEX   TO   FORMS   AND   NOTES. 

Eules  of  court — 

foreclosure —  page. 

practice  on  reference  on 347(a) 

in  case  of  infant  defendants  on 348,  n. 

reference  on,  when  answer  sets  up  no  defence 348,  n.,  349,  n. 

when  report  on,  to  be  made  without  reference 347(a),  352(a) 

master's  summons,  on  service  of. 354(a) 

procedure  on  reference  on 354(a) 

reference  on,  after  decree  pro  confesso 355(a) 

report  on,  rule  nisi  to  confirm... 107(6),  355(a) 

rights  of  defendants  in 355(a) 

when  complainant  entitled  to  final  decree  on 356,  n. 

service  of  rules  nisi  on 356,  n. 

depositions  annexed  to  report  on 356,  n. 

guardian  ad  litem — 

assignment  of  clerk  as 49(6),  50,  n. 

notice  to  infant 50,  n. 

petition,  affidavits  and  consent  on 53(rt) 

hearing — 

setting  cause  down  for 171(a) 

day  for  final 1'71(«) 

when  issue  is  on  plea 171(a) 

decree  to  be  signed  in  ex  parte  divorce 171(a) 

on  objection  to  plea 171(a) 

when  equities  are  settled,  day  for  final 171(a) 

terms  of  court 172(a) 

not  to  be  set  down  for,  after  twentieth  day 172(a) 

notices  of,  how  served 172(a) 

for  what  term  cause  to  be  noticed  for 172(a) 

costs  on  failui-e  to  attend 172(a) 

argument  ordered  oflT  at 172(a) 

on  exceptions  to  master's  report 173(a) 

briefs  on  cause  submitted 173(6) 

papers  to  be  furnished  at 173(6) 

procedure  at 173(6),  174,  n. 

on  reference  to  Vice  Chancellor 174,  n.,  175,  n. 

adjournment  of,  by  Vice  Chancellor 175,  n. 

procedure  at,  before  Vice  Chancellor 175,  n. 

on  reference  to  advisory  master 175,  n. 

application  for  i-eference  to  Vice  Chancellor 176(a) 

proceedings  before  Vice  Chancellor  to  final  decree 176(a) 

injunctions — 

when  granted  on  merits 287,  n. 

against  corporations  or  public  works 287,  n. 

aflSdavits  for,  by  whom  made 287,  n, 

motion  for,  on  what  day  noticed 289,  n. 

after  answer  filed 289,  n. 


INDEX   TO   FORMS  AND  NOTES.  861 

Kules  of  court — 

injunctions —  page. 

as  to  orders  to  show  cause  on 289(a),  290,  n. 

regular  course  on  order  to  show  cause  on 290(a) 

endorsement  of  denial  of. ..    290(6) 

when  writ  of,  must  be  issued 291(a) 

to  restrain  proceedings  at  law 292(a),  293,  n. 

injunction  master 300(a) 

practice  on,  by  Vice  Chancellor 300(a) 

bond  on,  ex  parte 301(a) 

in  ejectment  suit 302(a) 

motion  to  dissolve  before  answer 304(a) 

papers  to  be  used  on  motion  to  dissolve 304(a) 

insolvent  corporations — 

rules  applicable  to 534(a) 

interrogatories,  as  to 115(6),  116,  n. 

joinder  of  complainants,  as  to 3(a) 

lunatics,  idiots  and  drunkards — 

affidavits  in  case  of. 641,  n. 

practice  on  execution  of  commission  on 643(a) 

notice  of  inquisition 647(a) 

examination  of. 649(a) 

execution  and  return  of  commission  on 652(a) 

decree  in  case  of ...  654(a) 

petition  for  sale  of  land  of. 662,  n. 

reference  on  sale  of  land  of. 663(a) 

bond  on  sale  of  land  of. 665(6),  666,  n. 

master,  no  sale  by,  in  business  with  party 283,  n. 

motions — 

notice  of,  to  state  day  for 274,  n. 

motion,  upon  whom  served 274,  n. 

what  are  days  for 274,  n. 

effect  of  noticing,  on  days  not  enumerated 275,  n. 

notice  of,  times  for  service  of 275,  n. 

costs  on o 276,  n.  (a) 

ne  exeat 313(a) 

new  trustee — 

application  for,  how  made 720(6) 

notice  of  application  for,  service  of 724(a) 

orders,  entry  of. 277(a) 

papers,  production  of — 

inspection  and  copy  of 74(a) 

practice  on 76(a) 

partition — 

reference  to  ascertain  if  actual,  may  be  made 412(a),  413;  n. 

when  answer  on,  sets  up  no  defence 413,  n. 

notice  of  land  to  be  sold  free  from  dower,  &c 417(a) 


^62  INDEX   TO   FORMS   AND   NOTES. 

JRules  of  court — 

partition —  page. 

Avaiver  of  notice  of  selling  land  free  of  dower,  &c 419(6) 

master  making  report  not  to  make  sale 420(6) 

appointment  of  commissioners  to  make 444(a) 

plea — 

need  not  be  signed  by  counsel 97(a) 

when  to  be  entered  for  argument 100(a) 

amendment  after  allowance  of  (United  States  courts) 101(a) 

standing  for  answer,  exceptions  to 103(a) 

rehearing — 

petition  for,  what  to  contain 183,  n. 

copy  of  petition  for,  and  notice  of,  to  be  served 184,  n. 

on  causes  submitted  without  argument 184,  n. 

of  decrees  by  Vice  Chancellor 184,  n. 

caveat  against  enrolling  final  decree 185(a) 

notice  of  petition  for,  how  served 185(6) 

order  for,  not  to  stay  proceedings 185(c) 

replication — 

to  plea,  argument  on ,  143(a) 

United  States. rule  as  to  special 143(a) 

after  filing  of,  when  defendant  may  bring  on 144,  n. 

practice  on  (head-note) 144 

sale  of  lands,  infants,  of — 

petition  for 6G9(a) 

reference  and  practice  on 670(a),  671,  n. 

amount  of  and  ajDproval  of  bond  on 676(a),  677(a) 

joining  of  widow  on 678(6),  679,  n. 

disposition  of  proceeds  on 679(a) 

commissions  of  guardian  on 680,  n.  • 

scire  facias — 

as  to  revivor 322(a) 

papers  used  on  hearing 324(a) 

subpoena  ad  respondendum — 

names  to  be  in  one 20,  n. 

supplemental  bill,  on  502  n. 

surplus  money — 

petitions  for 256(a) 

controversies  to  be  settled  on  application  for 256(a) 

master's  summons  on  reference  for 258(a) 

petition  for,  by  executors,  &c 262(6) 

notice  by  executors,  &c.,  on  application  for... 265(6),  266,  n. 

reference  to  master  on 266(a) 

when  order  for,  on  behalf  of  executor  will  be  made 270(6) 

bond  by  executor,  &c.,  on 272(a) 

typewritten  papers,  as  to 1(a) 

writ  of  assistance,  practice  on 206(a) 


INDEX   TO   FORMS   AND   NOTES.  863 

Sale  of  land —  page. 

assignees  for  benefit  of  creditors,  by 726(a) 

infant,  of — 

petition  for  order  for ...  669 

affidavit  to 670 

who  may  present  petition  for 669(a) 

order  of  reference  on 670 

reference  to  special  master  on 670(a) 

duties  of  master  on  reference  on 670(a),  671,  n. 

master's  report  on  reference 672 

evidence  necessary  on  reference  on 672(a) 

necessity  for,  how  determined 672(a) 

guardian,  not  to  be  non-resident 671(a),  673(a) 

order  to  appoint  guardian  and  for  sale 674 

mode  of  sale 674(a) 

death  of  guardian  on 674(6) 

bond  of  guardian  on 676 

execution  of  bond  of  guardian  on 676(a) 

as  to  bond  of  general  guardian 676(a) 

approval  of  bond  of  guardian 677,  677(a) 

report  of  guardian  on 677,  677(6) 

affidavit  to  report  of  guardian 678 

consent  of  widow,  to  join  and  release  on 678,  678(a) 

release  of  dower  on 678 

rule  and  statute  on 678(6),  679,  n, 

order  confirming 679 

commission  of  specialjguardians  on 680,  n. 

in  case  of  death  of  purchaser 680,  n. 

report  of  investment  and  disposition  of  proceeds 681 

disposition  and  investment  of  proceeds  of  sale 676(a),  678(6), 

679(a),  681(a),  (6),  682,  n. 

discharge  of  special  guardian 682,  n. 

bond  of  general  guardian  on  receipt  of  proceeds 682,  n. 

account  byspecial  guardian 682,  n. 

rules  on 669(a),  670(a),  671,  n., 

676(a),  677(a),  678(6),  679,  n.  (a),  680,  n. 

statutes  on 669(a),  674(a),  (6),  676(a),  677(6), 

678(a),  678(6),  679,  n.  (a),  680,  n.,  681(a),  682,  n. 

limitation  over,  in  case  of — 

in  case  of  infant's  reversionary  interest 672(a) 

petition  for 682 

what  estates  conveyed  by... 683,  n. 

liens  of  encumbrancers  on 683,  n, 

notice  to  owners  of  vested  or  prospective  estates 684 

order  of  reference - 686 

notice  of  application  for  guardian  for  infant 687 

certificate  as  to  no  guardian  for  infant 687 


864  INDEX   TO   F0KM8   AND   NOTES. 

Sale  of  land — 

limitation  over,  in  case  of —  page. 

order  appointing  guardian  for  infant 687 

appearance  of  infant  on , 688 

notice  of  taking  testimony  on 688 

report  of  master  on  merits  of  application  for 689 

order  for 691 

report  of. , 692 

order  confirming 693 

master's  report  as  to  investment  of  proceeds  of. 694 

order  for  investment 695 

power  of  Chancellor  to  order  payment  of  mortgage 695(a) 

forms  of  bonds  and  mortgages 696(a) 

master's  account  and  report  of  investment 697 

order  of  reference  in  case  of  particular  estates 697 

report  of  master  on  reference,  in  particular  estates 697 

order  of  allowance  to  owners  of  particular  estates 699 

petition  of  non-resident  guardian  Tor  property 700 

affidavit  to 701 

practice  on  removal  of  proceeds  of 700(a),  701,  n. 

notice    of    application    for     payment,    to    non-resident 

guardian , 702 

order  for  removal  of  property 702 

statutes  on 682(a),  683,  n.,  683(a),  684(a),  685,  n., 

686(a),  689(a),  691(a),  693(o),  695(a),  700(a),  701,  n. 

presumption  of  death,  in  case  of — 

statutes  on 703(a),  (6) 

petition  for,  by  devisee 703 

as  to  presumption  and  proof  of  death 704,  n. 

order  of  reference,  on  devisee's  petition 706 

master's  report,  on  devisee's  petition 706 

order  for 707 

bond  of  administrator  to  secure  proceeds  of. 709 

report  of  administrator  on 709 

order  confirming 710 

petition  for,  by  administrator  to  pay  debts 711 

order  of  reference,  as  to  debts 712 

trustees,  &c.,  by,  to  pay  encumbrances 726(a) 

see  "  Execution,"  ante. 

"  Foreclosure,  '  execution  on,'  "  ante. 
"  Lunatics,  idiots,  &c.,  '  sale  of  land,'  "  ante. 
Scandal — 

definition  of 119(o),  120,  n. 

in  affidavit 278(a) 

see  "  Exceptions,  '  answer  to,'  "  ante, 
'  bill  to,'  "  ante. 


INDEX   TO   FORMS   AND   NOTES.  865 

Scire  facias —  page. 

petition  for  writ  of 322 

when  execution  may  issue 322(a) 

order  for  execution,  when  necessary 322(a) 

effect  of  statute  upon 322(a) 

affidavit  of  verification  to  petition  for 324 

order  to  show  cause  on  petition  for 324 

wlien  order  to  show  cause  necessary 324(a) 

proceedings  on , 324(a) 

affidavits  and  petitions  used  on  hearing 324(a) 

order  for  execution  to  issue 325 

form  of  execution 325(a) 

in  case  of  partly-satisfied  execution 325(a) 

amendment  of. 325(a) 

Security  for  costs — 
bond  on — 

general  principles- 
form  of 70 

how  given 70,  n. 

notice  of  filing 70  n. 

requisites  of. 70(a) 

operates  as  a  discharge  of  stay 70(a) 

where  to  be  filed 70,  n.  (a) 

to  what,  is  applicable "1(a) 

justification  of — 

affidavit  of  surety,  where  to  be  written 70(a) 

exception  to  surety 70(a) 

surety  required  to  make 70(a) 

affidavit  of,  by  surety 71 

how  surety  to  justify 71(«) 

deposit  in  lieu  of  bond — 

notice  of  filing 70  n. 

may  be  given 69,  n.,  70,  n.,  71,  n. 

order  for — 

form  of 68 

may  be  made  independent  of  statute 69,  n. 

how  obtained 69  n. 

served 70,  n. 

practice  and  principles  applicable  to — 

complainant's  residence  not  stated  in  bill  as  grounds  for...  2(a) 

complainant  having  no  permanent  residence 2(a) 

state  need  not  give 7,  n. 

acceptance  of. 69,  n. 

when  required,  independent  of  statute 69,  n. 

proceedings  to  be  stayed  until  given 69,  n. 

non-residence,  liow  proved (19,  n. 

pending  suit 69,  n. 

3e 


866  INDEX   TO   FORMS  AND   NOTES. 

Security  for  costs — 

practice  and  principles  applicable  to —  page. 

waiver  of 69,  n. 

in  case  of  joint  complainants 69,  n. 

infants • 69,  n. 

unknown  complainant , 70,  n. 

military  or  public  officer 70,  n. 

computation  of  time  after  order  for 70,  n, 

effect  of  obtaining  time  to  answer,  &c 70(a) 

non-resident  executor,  &c.,  need  not  give. 71,  n. 

complainant  in  cross-bill  need  not  give 71,  n. 

by  poor  relator 71,  n. 

when  cause  will  be  dismissed  for  want  of 71,  n. 

order  for  time  to  answer  precludes  motion  for 82,  n. 

by  foreign  executor 332,  n. 

in  case  of  alimony 473(a) 

statute  on 68(6),  69,  n. 

Sequestration — 

in  case  of  absent  defendants 25,  n. 

compelling  answer  of  corporation  by 37(a) 

when  may  issue 43(a) 

order  for 43 

writ  of 43 

in  case  of  contempt 80(a) 

power  of  court  to  order 242(a),  243,  n, 

in  case  of  alimony 468(a) 

Service  of  subpoena — 

see  "  Subpoena,"  post. 
Severance,  summons  and  — 
see  "Appeals,"  ante. 
Sheriffs— 

injunction  to  restrain  official  acts  of. 13(c),  14,  n. 

see  "  Deputy  sheriff,"  ante. 
"  Execution,"  ante. 
"Foreclosure,"  ante. 
"  New  execution,"  ante. 
"  Subpoena,  '  service  of,'  "  post. 
Solicitor — 

appearance  by — 

form ^^ 

statute  on 281(a) 

appointment  of — 

order  for ^*1 

in  case  of  suit  commenced  in  person 281(a) 

death,  &c.,  statute  on 281(6) 

dismissal  of  bill  for  default  of,  order  for 282 


INDEX   TO   FORMS   AND   NOTES.  867 

Solicitor — 

authority  of —  page. 

avoiding  decree  for  want  of 36,  u. 

liability  for  acting  without 36,  n. 

disproving 36,  n. 

presumption  of. 2Sl(a) 

liability  of — 

for  costs,  on  infant's  bill 4,  n. 

acting  without  authority 36,  n. 

costs,  on  non-resident's  bill 69,  n. 

powers  of — 

affidavit  taken  by,  in  cause,  effect  of. 279,  n. 

partners  may  act  as 281(a) 

efiect  of  dissolution  of  firm  of. 281(a) 

substitution  of — 

order  of. 281 

right  to 281(a) 

order  for,  in  order  to  prosecute  in  person 281(a) 

Special  decrees  and  decretal  orders — 

see  "  Decree,  '  special  forms  of,'  "  ante. 

Specific  performance,  decree  for 630 

Speeding  cause — 

order  for 118 

grounds  for 118(6) 

time  of  taking  order  for 118(6) 

return  of  order  for 118(6) 

what  notice  of,  to  be  given 118(6) 

ordei-s  for,  ex  parte 118(6) 

filing  of  replication  as 118(6) 

discretion  of  court  as  to 118(6) 

on  bill  to  perpetuate  testimony 142(a) 

State — 

bill- 
introduction  to,  by 6 

with  relator 7 

prayer  for  process  in,  against 12 

costs,  need  not  give  security  for 7,  n. 

notice — 

statute  as  to  12(6) 

appearance  on 13,  n. 

form  of 22 

endorsement  of. 22(a) 

names  of  parties  in 22(a) 

return-day  of. 22(</) 

to  be  under  seal 22(a) 

service  of 13,  n.,  22(a) 

acknowledgment  of  service  of 22(a) 

relator  in  suits  by 6(a) 


868  INDEX   TO   FORMS   AND   NOTES. 

Stating  part — 

see  "  Bill,  '  constituent  parts  of,'  "  ante. 
Statutes — 

abatement  and  revivor —  page. 

suits  in  chancery  not  to  abate 315,  n. 

as  to  bills  of  revivor 315,  n. 

death  of  one  of  several  plaintiffs  or  defendants 

315(a),  316,  n.  (a) 

on  death  of  sole  plaintiff 317(a) 

by  foreign  executor,  &c 318(a) 

on  death  of  sole  defendant 319(a) 

order  to  revive 316(a),  320(a) 

when  suit  at  an  end 321(o) 

by  administrator  pe?iden<e  lite 316(a),  321(6) 

absent  defendants — 

publication  against 24(6),  25,  n.,  26,  n. 

in  case  of  mortgagors  as 27(a) 

partition 28(a) 

foreign  publication  superseded 28(a) 

in  case  of  unknown,  &c.,  parties 29(6) 

non-resident  corporation 24(a),  33,  n. 

abstract  of  decree — 

filing  and  efiect  of. 222(a),  223,  n. 

administrators  and  executors — 

foreign,  suit  by 6,  n. 

substitution  of,  in  place  of  complainant 6,  n. 

admission  of  parties — 

in  case  of  newly-acquired  interest 283(a),  284,  n. 

not  to  delay  cause 284,  n. 

in  case  of  unrecorded  lien 285(a) 

affidavits,  how  taken  out  of  the  state 279,  n. 

answer — 

extension  of  time  for,  after  demurrer 81(a) 

before  what  officers  may  be  sworn 87,  n. 

after  demurrer  overruled 91,  n. 

time  for  filing 104(a) 

when  sworn  to,  how  far  evidence 114,  n. 

in  case  of  insufficient,  time  for  further 126(6),  127(6) 

costs  on  second  insufficient 127(a) 

third  insufficient 128,  n. 

effect  of  third  insufficient 128,  n. 

appeals — 

in  what  cases  and  when  brought 186(6),  187,  n. 

by  corporation 187,  n. 

from  Prerogative  Court 187,  n. 

by  poor  person 187,  n. 

Chancellor  not  to  sit  on 197(a) 


INDEX   TO   FORMS   AND   NOTES.  869 

Statutes — 

appeals—  page. 

papers  to  be  returned  after  decision  on 198(a) 

costs  on,  discretionary 201(a) 

appearance,  in  foreclosure 36,  n. 

assignees  for  the  benefit  of  creditors — 

sale  of  land  by 726(a) 

attachments  with   proclamation  and   commission  of    rebellion 

abolished. 39(a) 

citation  in  divorce — 

when  may  issue 21(6) 

service  and  return  of 21(6) 

conduct  of  cause — 

as  to  exceptions  or  replication  on , 139(a) 

contempt — 

sheriff  not  returning  process  to  be  in 39,  n. 

punishment  for 39(a) 

in  case  of  insolvent  debtor 40,  n. 

presence  of  Vice  Chancellor 45(a) 

cross-bill,  answer  to 510(a) 

demurrer — 

affidavit  and  certificate  to 92(a) 

time  for  filing 92(a) 

to  be  first  disposed  of. 95(a) 

setting  down  of,  for  hearing 95(a) 

and  answer,  practice  on 120,  n. 

discovery 496(6),  497,  n.,  498,  u. 

dismissal  of  bill — 

when  defendant  may  move  for 90,  n. 

enrollment  unnecessary  on 141(a) 

grounds  for 141(6) 

on  failure  to  set  down  for  hearing 141(6) 

for  failure  to  attend  at  hearing 141(6),  171(a),  174,  n.,  182(o) 

distribution  of  personal  property — 

application  for ''13(«),  714,  n. 

divorce — 

jurisdiction  of  chancery  over 452(a) 

grounds  of..... 452(a) 

petition  in 453(a) 

appointment  of  solicitor  for  poor  person 454,  n. 

sworn  answer  as  evidence  in 455(a) 

affidavit  of  non-collusion 457(a) 

issuing  and  service  of  citation 459(a) 

non-resident  defendant 459(a) 

practice  and  procedure  on 455(a),  459(6) 

efiect  of  collusion 463(a) 


870  INDEX  TO   FORMS  AND   NOTES. 

Statutes — 

divorce —  page, 

from  bed  and  board  on  conscientious  scruples 464(a) 

as  to  alimony 468(a),  469,  n. 

security  for  costs 473(a) 

examination  of  witnesses — 

non-resident  on  notice 145(a) 

de  bene  esse,  when  may  be  taken 145(a) 

notice  of  application  for  commission  for 146,  n. 

■    commission  for,  on  short  notice H6,  n. 

notice  of  taking,  by  officer 146,  n. 

taking  and  filing  depositions  en 146,  n. 

on  commission 147(a) 

practice  on  commission  for 148(a) 

deposition  on,  to  be  admitted  in  evidence 149,  n. 

objections  to  competency  of  depositions 149,  n. 

as  to  expense  of  taking  deposition 149(a) 

names  of  witnesses  in  commission 150(a) 

oath  of  commissioners 151(a),  (c) 

as  to  commission 152(a) 

what  oaths  declared  good 152(6) 

swearing  with  uplifted  hand 152(c) 

affirmation  and  declaration 152(cZ) 

depositions  on,  to  be  written  and  signed 153(a) 

how  depositions  on,  taken 153(6) 

as  to  exhibits 153(c) 

how  commission  on,  returned 154(a) 

party  may  receive  and  deliver  commission 154(6) 

of  the  return  of  foreign  commission 154(c) 

endorsement  on  return  of  commission 155(a) 

messenger's  oath  to  foreign  commission 155(6) 

as  to  letters  rogatory 155(c) 

subpoena  arf  testificandum 157,  n.  (a) 

contempt  for  disobedience  to  subpoena 157(a) 

domestic,  de  bene  esse 158(a) 

compelling,  de  bene  esse 158(a) 

domestic,  depositions  of 158(a),  159,  n. 

messenger's  oath  to  domestic  deposition 159,  n. 

notice  of  domestic 160(a) 

stenographei-'s  fees  on 162,  n. 

by  examiners 162,  n. 

complainant  as  a  witness 162,  n. 

form  of  oath  on 163,  n. 

when  cause  to  be  set  down  for  hearing  after 168,  n. 

exceptions — 

answer,  to — 

time  for  filing  of. 120,  n. 

rule  to  refer 122(a),  123,  n. 


INDEX   TO   FORMS   AND    NOTES.  871 

Statutes — 

exceptions — 

answer,  to —  page. 

further  answer  after  allowance  of. 126(6) 

costs  on , 130(a) 

bill,  to— 

when  master  to  report  on 63(a) 

executions — 

power  of  court  to  issue  process  for 210(a) 

appearance  not  to  stay 210(a) 

to  be  recorded 210(a) 

sale  under,  when  whole  of  mortgage  money  not  due 211(a) 

sheriff's  return  to 213,  n. 

adjournment  of  sale  on 213(a) 

advertisement  of  adjournment  of  sale  on 213(o) 

sales  under,  on  Saturday  afternoon 213(a) 

appointment  of  undersheritf  on 213(a) 

coroner  may  execute  writ 213(a) 

mode  of  sale  on 213(a) 

advertisement  of  sale  on 217(a),  218,  n. 

defective  advertisement  of  sale  on 218,  n. 

appointment  of  officer  to  adjourn  sale  on  219((7) 

petition  for  new 226(a) 

adjournment  of  sale  on,  for  more  than  a  week 230(o) 

sheriff's  statement  of  sale  on 233(a) 

fees  on  sales  on 234(a)  to  (i) 

number  of  adjournments  of  sale  on 234(c) 

as  to  sheriff's  successor 234(() 

effect  of  sheriff's  failure  to  make  return  on 235,  n. 

report  of  sale  on 235(<() 

what  estate  vests  on  sale  on 237(a) 

recitals  in  deed  on  sale  on 237(6) 

sheriff's  notice  of  sale  of  land  on 238(a),  (6) 

advertisement  of  sale  on,  in  what  newspaper 238(c) 

deed  on  sale  on,  how  far  evidence 240(a) 

sheriff's  affidavit  to  deed  on  sale  on 2S4.{g),  241(a) 

recording  deed  on  sale  on 241(a) 

deed  of  succeeding  officer  on  sale  on 241(a),  242,  n. 

process  to  enforce  decree  by,  and  lien  of  242(a),  243,  n. 

feigned  issue — 

court  may  authorize  trial  at  law 243(a) 

to  try  title  to  real  estate 244,  n. 

final  decree — 

recitals  in 179(a) 

signing  of,  by  Chancellor's  successor IHO,  ii. 

may  be  made  in  vacation 180,  n. 

effect  of,  as  a  conveyance 181(6),  182,  n. 


872  INDEX   TO   FOEMS   AND    NOTES. 

Statutes — 

foreclosure —  page 

power  of  court  to  decree  sale  on 326(a-) 

search  fees  on 327,  n 

designation  of  married  woman  on 330(a 

foreign  executor,  &c.,  as  party  in 6,  n.,  332,  n 

married  woman  may  sue  alone 332,  n.,  333,  n 

parties  acquiring  interest  after  bill  filed  for 343,  n 

lis  pendens  not  to  apply  to 343,  n 

in  case  of  unknown,  &c.,  party 344(a 

sale  when  money  not  all  due  336,  n.,  340(a),  350(o 

supersedeas,  if  absent  defendant  appears 362,  n 

satisfaction  of  decree  on 362,  n 

habeas  coi-ptis  — 

act  of 476(a 

power  of  Chancellor  to  grant 476(a 

custody  of  infants  in  case  of. 476(a 

hearing — 

when  cause  to  be  set  down  for 118(6),  171(a 

setting  down  for,  on  bill  and  answer 171(a 

when  plea  or  demurrer  to  be  set  down  for ..  171(a 

on  bill  and  answer 174,  n 

before  Vice  Chancellor,  settling  report  on 175,  n 

reference  of  cause  to  Vice  Chancellor  for 176(a 

effect  of  non-attendance  at 171(a),  174,  n.,  182(a 

improvement  of  ward's  property 701,  n.,  726(a 

injunctions — 

court  always  open  to  grant 287,  n 

to  stay  proceedings  at  law  before  verdict 292(a 

punishment  for  breach  of,  to  stay  waste 294(a 

to  stay  mixed  actions  after  verdict 302(a 

ejectment  suit  after  issue  joined 302(a 

personal  actions  after  verdict 303(o 

motion  to  dissolve,  when  to  be  heard 304(a 

insolvent  corporations — 

power  of  chancery  over 529(« 

appointment  of  receivers  of 535(a 

oath  of  receiver  of 535(a),  536,  n 

duties  of  receiver  of. 536,  n 

appeal  from  determination  of  receiver  of 550(a 

interest 637(« 

interpleader,  counsel  fee  in 486(a 

interrogatories — 

annexing  of,  to  answer  without  oath 10(a 

by  defendant  to  complainant 115(6 

Us  pendens 343,  n.,  411(a),  5'.7(a),  518,  n.,  519,  n 


INDEX   TO   FORMS   AND   NOTES.  873 

Statutes  — 

lunatics,  idiots  and  drunkards —  page. 

appointment  of  guardian  for,  without  inquest 639,  n. 

place  of  executing  commission 640,  n. 

in  case  of  non-resident 640,  n. 

■wife  or  child  not  to  petition  in  case  of  drunkard...639(a),  642(a) 

Chancellor  may  issue  commission  for  drunkard 642(a) 

jury  in  case  of 645(a) 

practice  in  case  of  jury 649(a) 

application  for  guardian  of. 654(a) 

setting  aside  inquisition 657(a) 

reformation  of  drunkard 659(a) 

sale  of  land  of. 661(a),  662,  n., 

664(a),  (6),  665(a),  (6),  666(a),  667,  n. 

conveyance  by  wife  of. 667,  n. 

release  of  inchoate  dower  of. 667,  n. 

dower  of. 667,  n. 

married  woman — 

service  of  process  on 28(a) 

right  to  sue  in  her  own  name 3(a),  104(d) 

month,  meaning  of 277(a),  278,  n. 

ne  exeat — 

when  writ  of,  will  be  granted 309(a) 

amount  of  bond  to  be  given  on 312(6) 

new  trustee — 

application  for  and  appointment  of. 720(6),  721,  n. 

powers  of 721,  n. 

joint  tenancy,  of. 721,  n. 

in  case  of  minority 721,  n.,  722,  n. 

conveyance  by  infant  trustee 721,  n.,  722,  n. 

appointment  of,  in  case  of  waste  by  old  trustee 722,  n. 

transfer  of  funds  to  foreign 726(a) 

application  by,  to  pay  oft'  liens 726(d) 

continuation  of  investments  by 726(a) 

improvement  of  ward's  property  by 726(a) 

sale  by  assignee  of  insolvent  debtor 726(a) 

next  friend — 

Englisli  practice  as  to 4,  n. 

New  York  practice  as  to 4,  n. 

notice  of  application — 

in  unspecified  cases,  how  given 274,  ii. 

papers,  production  of — 

power  of  court  to  order 74(a) 

application  for,  by  petition 76(a) 

partition  — 

authorization  of  sale  in 402(a) 

power  of  chancery  over 402(a) 


874  INDEX   TO    FORMS   AND    NOTES. 

Statutes — 

partition —  page, 

who  may  have 402(a) 

by  executor  with  power  of  sale 402(a) 

on  estate  less  than  a  fee 402(a) 

in  case  of  advancement 402(a) 

when  owners  presumed  to  be  dead 28(a),  403,  n.,  404,  n. 

protection  of  liens  in , 404,  n. 

as  to  sale  in,  discharged  of  liens 405,  n. 

right  of  tenant  in  dower  or  curtesy  in 405,  n. 

inchoate  right  of  dower  in 405,  n.,  406(a) 

creditors,  when  to  be  made  parties  in 407(a) 

as  to  lis  'pendens 411(a) 

report  as  to  liens 414(a) 

sale  of  lands  in,  free  from  dower  or  curtesy  417(a) 

liens  of  debts 417(a) 

decree  for  actual 418(a) 

in  case  of  lands  limited  over 419(a) 

investment  of  share  not  held  in  fee 419(a) 

proceeds  of  sale 419(a) 

sale  of  land  in,  how  made 420(a) 

by  master 420(6) 

conclusiveness  of 421(a) 

report  of  sale  by  master 423(a) 

in,  may  be  made  at  special  term 424(a) 

defective  advertisements  of  sale  in 424(a) 

as  to  distribution  in 428(a) 

to  judgment  creditors 428(a) 

bond  of  guardian 430(a) 

investment  of  share  of  unknown  parties 431(a),  432,  n. 

suits  on  refunding  bonds  in 432,  n. 

liens  apportioned  amongst  shares 442(a) 

of  part  of  premises  and  sale  of  residue 402(a),  442(a) 

vacancy  on  commission  in 444(a) 

allowances  to  commissioners  in.. 444(6) 

efiect  of  decree  to  convey  lands  in 446(a) 

fees  for  searches  in 447(a) 

counsel  fee  in 447(a) 

as  to  gross  sura  in  payment  of  dower  or  curtesy.  ...447(6),  448,  n. 
plea — 

when  not  to  be  filed 96(a) 

affidavit  and  certificate  to , 92(a),  97(a) 

issue  upon 100(a) 

standing  for  answer,  sufficiency  of. 103(a) 

answer  after  overruling  of. 100(a),  104(a) 

poor  persons,  suits  by 72(a) 


INDEX   TO   FORMS   AND   NOTES.  875 

Statutes — 

quiet  title,  to —  page. 

bill  may  be  filed  to 615(a) 

in  case  of  unknown  parties 617(a) 

tickets  in  case  of 618(a) 

in  what  county  issue  may  be  tried 618(6) 

decree  for  costs  on 620(a) 

answer  of  defendant  claiming  estate 620(a) 

issue  at  law  may  be  directed 620(a) 

final  decree  to  settle  rights 620(a) 

appeal  in  case  of. 621,  n. 

redemption  of  mortgage — 

in  case  of  action  on  bond  or  ejectment 345(6),  346,  n. 

replication — 

to  plea 143(a) 

cause  at  issue  upon  filing 143(a) 

time  for  filing 143(a) 

sale  of  lands — 

infants,  of — 

application  for,  to  Chancellor 669(a) 

for  discharging  encumbrances 669(a) 

mode  of  sale , 674(a) 

in  case  of  death  of  special  guardian 674(6) 

bond  of  guardian  on 676(a) 

report  of  guardian  on 677(6) 

consent  of  widow  to 678(a) 

payment  or  investment  of  dower  or  curtesy  on 678(6) 

release  of  dower  on,  by  married  woman 678(6),  679,  n. 

disposition  of  proceeds  of 679(a) 

in  case  of  death  of  purchaser 680,  n, 

guardian's  report  of  disposition  of  proceeds  of 681(a) 

discharge  of  special  guardian 682,  n. 

bond  of  general  guardian  on  receipt  of  proceeds  of,  682,  n. 

account  of  special  guardian  on 682,  n. 

limitation  over,  in  case  of — 

power  of  court  to  direct 682(a),  683,  n. 

sale  may  be  free  from  liens 683,  n. 

taxes,  &c.,  may  be  ordered  paid  on 683,  n, 

in  case  of  widow's  unproductive  share  in 683,  n. 

wlien  and  how  application  may  be  made  for 683(a) 

notice  to  owners  of  vested  or  prospective  estates...  684(a) 

in  ca.se  of  unknown  owners 684(a),  685,  n. 

reference  on 686(a) 

ma-ster's  report  on 689(a) 

order  for  sale  of 691(a) 

master's  deed  on 693(a) 

costs  and  expen.scH  on 693(a) 


876  INDEX   TO   FOEMS    AND    NOTES. 

Statutes — 

sale  of  lands — 

limitation  over,  in  case  of —  page. 

investment  of  proceeds  of. 695(a) 

payment  of  proceeds  of. , 695(a) 

proof  of  appointment  of  non-resident  guardian....  700(a) 
removal  of  proceeds  of,  by  non-resident  guardian, 

700(a),  701,  n. 
presumption  of  death,  on — 

when  death  presumed 703(a) 

application  for 703(6) 

disposition  of  proceeds  of 703(6),  704,  n. 

see  also  under  "  Statutes." 
'  assignee.' 
'  execution.' 
'  foreclosure.' 
'  lunatics.' 
'  partition.' 
'trustees.' 
scire  facias — 

execution  may  issue  without  revival 322(a) 

security  for  costs — 

in  case  of  non-resident  complainant 68(6),  69,  n. 

solicitors — 

partners  may  appear  as 281(a) 

eflect  of  death,  &c.,  of. 281(6) 

State  of  New  Jersey — 

notice  to,  in  suits  against 12(6),  21,  n. 

.subpoena  ad  respondendum — 

issuing  of 18(a) 

acknowledgment  of  service  of 19,  n. 

by  whom  served 19,  n. 

service  of,  in  case  of  disability  of  officer 19,  n. 

upon  a  corporation 20,  n. 

requisites  of. 20,  n. 

.surplus  money — 

investment  of 261(o) 

rights  of  judgment  creditors  to 261(a) 

payment  of,  to  executor,  &c 262(a) 

investment  of  gross  sum  for  life  tenant 267(a) 

payment  to  life  tenant  of  gross  sum  out  of. 267(a),  269(a) 

release  of  dower  in 270(oV 

executors,  &c.,  bond  on  receipt  of. 272(a) 

tickets — 

in  foreclosure 22(6) 

on  bill  to  quiet  title 618(a) 


INDEX   TO   FORMS  AND  NOTES.  877 

Statutes — 

trustees,  guardians,  &c. —  page. 

may  improve  ward's  property 701,  n.,  726(a) 

remove  property  from  state 726(a) 

sell  land  to  pay  encumbrances 726(a) 

continue  investments 726(a) 

mortgage  to  improve  lands 726(a) 

Staying  suit — 

on  omission  to  state  complainant's  residence  in  bill 2(a) 

for  want  of  security  for  costs 69  n. 

discharge  of,  by  filing  bond  for  costs 70(a) 

surety  to  justify  before  order  to  discharge 70(a) 

on  commission  de  bene  esse 149(a) 

rehearing,  notice  of. 185 

rule  for 185(c) 

order  for 185 

appeal  from  interlocutory  decree,  order  for 189 

practice  on 189(6),  (c) 

appeal  from  order  in  feigned  issue,  as  grounds  for 252(a) 

on  election  between  suit  and  action 117(a),  280,  n. 

admission  of  parties 284,  n.,  341,  n. 

cross-bill,  order  for 511 

practice  as  to 511(a) 

see  also  "Appeals,"  ante. 

"Injunction,"  ante. 
Strict  foreclosure — 

gee  "  Foreclosure,"  ante. 
Submission  of  cause  without  argument — 
hearing,  on — 

form  of 173 

practice  on 173(6) 

rehearing,  on — 

granted  of  course  on 184,  n. 

practice  as  to,  in  United  States  courts 186,  n. 

SubpcBna  ad  respondendum — 

practice  and  requisites  of — 

form  of 18 

time  of  issuing 18(o) 

statute  as  to 18(a) 

when  will  be  set  aside 18(a) 

waiving  defective  issue  by  appearance 18(«) 

correction  of  date  of. 18(a) 

in  ca.se  of  amended  bill 18(a) 

where  obtained 18(a) 

will  issue  against  infants 18(a) 

when  to  be  tested 18(a) 

ri'turn-day  may  be  altered  by  slieriff. 18(a) 


878  INDEX   TO   FORMS   AND   NOTES. 

Subpoena  ad  respondendum — 

practice  and  requisites  of —  page. 

technical  grounds  for  disobeying  not  allowed , 19,  n. 

on  what  day  to  be  returnable 19,  n. 

when  returnable  on  Sunday 19,  n. 

a  holiday 19,  n. 

in  case  of  blank  return-day  and  month 19,  n.  - 

endorsement  on 20 

statute  as  to  subscription  or  endorsement 20,  n. 

names  in 20,  n. 

in  case  of  amended  bill 136,  n. 

subpoena  to  rejoin 143(a) 

issue  and  return  of,  with  injunction 13(c),  20,  n.,  291(a) 

subpoena  ad  revivendum 316(a) 

in  case  of  partition 403,  u. 

supplemental  bills 36,  n.,  503(a) 

return  of — 

day  for,  may  be  altei-ed  by  sheriff. 18(a) 

day  for 19,  n. 

on  Sunday 19,  n. 

holiday 19,  n. 

form  of 20 

conclusiveness  of. 20,  n. 

in  case  of  absence,  concealment,  &c 23(6) 

service  of — 

effect  of,  as  making  party 12(a) 

writ  of  ne  exeat  when  served  equivalent  to 14(a) 

mode  of. lS(a) 

acknowledgment  of. 19,  n. 

defective,  cured  by  appearance 19,  n. 

on  defendants  absent  from  home 19,  n. 

in  case  of  blank  day  and  month 19,  u. 

by  whom  served  19,  n. 

domicile  of  husband  and  wife  as  affecting 19,  n 

on  husband  and  wife 19,  u. 

wife  in  suit  against  separate  estate 19,  n. 

infant 19,  n. 

secreted , 19,  n.,  20,  n. 

non-resident  lunatic 20,  n. 

corporation 20,  n. 

lunatic 20,  n. 

effect  of  omission  of,  in  case  of  injunction 20,  n. 

request  to  enter  appearance 21,  u. 

on  United  States  or  state 13,  n.,  21,  n. 

prisoner  in  custody 21,  n. 

authorization  of  deputy  sheriff  to  make 21 

deputy  sheriff  not  to  be  appointed  by  parol 21(a) 


INDEX    TO   FORMS   AND   NOTES.  879 

8ubi3cena  ad  respondendum — 

service  of —  page. 

appearance  equivalent  to 19^  n.,  36,  n. 

waiver  of  defects  in,  by  demurrer 91  n. 

in  case  of  supplemental  bills 503(a) 

Subpoena  ad  revivendum t 316(o) 

Subpoena  ad  testificandum — 

common  form  of 156 

form  of,  in  lunacy  proceedings 648 

see  also  "  Examination  of  witnesses,"  ante. 
"  Lunatics,  idiots,  &c.,"  ante. 

Subpcena  to  rejoin 143(a) 

Subrogation — 

jurisdiction  of  chancery  in  cases  of. 576(a) 

right  of  surety  to 588(a) 

Substitution  of  master — 

o  der  for 282 

not  to  be  made  without  order 282(a) 

grounds  for,  to  be  shown 282(a) 

Substitution  of  solicitor — 
see  "  Solicitor,"  post. 
Summons — 

see  "  Master's  summons,"  anfe. 
Summons  and  severance  — 
see  "Appeals,"  ante. 
Supersedeas — 

on  appearance  of  absent  defendant 25,  n. 

order  for 33 

statute  in  case  of  foreclosure 362,  n. 

Supplemental  answer — 

when  necessary... , 106,  n. 

leave  to  file,  after  cause  set  down  for  hearing 177(a) 

Supplemental  bills — 
bills  of— 

to  introduce  new  matter 502 

statements  in 502(a) 

stating  amendments  in 502(a) 

against  new  parties 503 

in  the  nature  of  bill  of  revivor  and 504 

prayers  in 504(a) 

orders  on — 

leave  to  file 501 

irregular  if  filed  without  leave 501(a) 

waiver  of  irregularity 36,  n.,  501(a) 

notice  of 501(a) 


880  INDEX   TO   FORMS   AND   NOTES. 

Supplemental  bills — 

practice  on —  page. 

before  filing,  leave  to  be  had 36,  n.,  501(a) 

petition  under  rule 502,  n. 

after  answer 504(o) 

principles  applicable  to — 

on  change  of  issue  by  amendment ...  133,  n. 

dismissal  of  bill  as  bar  to..... 141(a) 

in  case  of  new  evidence 183,  n. 

filing,  for  the  purpose  of  appeal 187,  n. 

in  case  of  new  matter 315,  n. 

by  defendant  in  interpleader 486,  n. 

to  be  founded  on  new  facts 502(a) 

uses  of. 502(o) 

'  when  necessary 502(a) 

court  rule  on 502,  n. 

replication  to , 504(a) 

subpoena,  issuing  and  service  of 503(a) 

Suppression — 

see  "Answer,"  ante. 

"Examination  of  witnesses,"  ante. 
Surplus  money — 

account  of  executors,  &c.,  on — 

rule  on 262(6) 

to  petition 264 

items  in,  how  expressed 265(a) 

affidavit  to 265 

bond  on  payment  of — 

by  executor,  &c 272 

statute  and  rule  on 272(a) 

to  whom  given 272(6) 

claims  to — 

priority  of 256(a) 

controversies  on,  how  settled 256(a) 

to  be  verified 2o9(a) 

dower  and  curtesy — 

as  to  payment  of  sum  in  gross 267(a) 

rights  of  widow 267(a) 

sum  in  gross,  how  ascertained 268(a) 

inchoate  right  of  dower  in 270(a) 

release  of  inchoate  right  of  dower  in 270(a) 

investment  of,  in  case  of  absent  parties 261(a) 

judgment  creditors — 

claims  of,  in  attachment 259(a) 

petition  by 261(a) 

payment  to 261(a) 

land,  considered  as 256(o),  262(6) 


INDEX   TO   FORMS   AND   NOTES.  881 

Surplus  money — 

notice  of  application  for —  page. 

by  executors,  &c 265 

rule  on 265(6),  266,  n. 

payment  of,  order  for — 

receipt  by  sheriff'  on 256(a) 

common  form  of  final 260 

to  judgment  creditor 261(a) 

executor  of  deceased  mortgagor 262(a) 

executors,  &c.,  form  of 270 

when  will  be  made  to  executors,  &c 270(6) 

petition  for — 

common  form 256 

how  entitled 256(a) 

in  foreclosure,  time  of  presenting 256(a) 

by  judgment  creditor 261(a) 

executor,  &c.,  form  of. 262 

statements  in,  by  executor,  &c 262(6) 

annexing  account  to,  by  executors,  &c 262(6) 

verification  of,  by  executors,  &c '262(6) 

form  of  account  to,  by  executors,  &c 264 

affidavit  to,  by  executors,  &c 265 

filing  of. 265(6) 

references  on  petition  for — 

common  form  of  order  for 258 

proof  of  claims  on 259(a) 

order  for,  in  case  of  executors,  &c 266 

rule  of  court  as  to  executors,  &c 266(a) 

practice  as  to  summons  on 258(a),  266(a) 

report  on  petition  for — 

common  form 259 

rule  nisi  to  confirm 260(a) 

form  in  case  of  executors,  &c 268 

Tender — 

see  "  Foreclosure,"  ante. 
Terms  of  court — 

regular 172(a) 

supposed  to  be  always  open 287,  n. 

Testimony — 

not  to  be  taken  before  certain  persons 283,  n. 

see  also  "  Evidence,"  ante. 

"Examination  of  witnesses,"  a?^<e. 
Tickets- 
foreclosure  in — 

forms  of 22,  23 

practice  as  to 22(6),  23,  n.  (a) 

omission  of,  as  grounds  for  demurrer 94(o) 

3f 


882  INDEX  TO   FORMS  AND   NOTES. 

Tickets- 
quiet  title,  to —  PAGE. 

form  of. 618 

statute  on 618(a) 

see  also  "  Foreclosure,"  ante. 
"  Quiet  title,"  ante. 
Titles- 
see  "  Quieting  title,"  ante. 
Titles  and  commencements — 
see  "Answer,"  ante. 
"  Demurrer,"  ante. 
"Plea,"  ante. 

Trust  deed,  decree  reforming. 636 

Trustee — 

mortgagee  as,  for  assignee 331(a) 

party  with  cestui  que  trust 2(a),  332,  n.,  341,  n.,  362,  n. 

see  "  New  trustee,"  ante. 

"  Statutes,  '  trustees,  &c.,'  "  ante. 

Typewriting,  rule  as  to 1(a) 

Ultra  vires  as  defence  under  amended  answer 106,  n. 

United  States  Circuit  Court — 

address  in  bill  to 1 

introduction  in  bill  in 2 

United  States,  prayer  for  process  against 12 

Unknown  owners — 

in  case  of  surplus  money 261(a) 

investment  of  shares  of. 431(a),  432,  n. 

statutes  on 27(a),  28(a),  29(6),  344(a),  617(o),  684(a),  685,  n. 

see  "Absent  defendants,"  ante. 
Usury — 

as  defence  under  amended  answer 106,  n. 

decree  on  mortgage  affected  with 637 

Variance — 

between  allegata  and  probata 8,  n. 

immaterial,  between  agreement  alleged  in  bill  and  answer 8,  n. 

between  stating  and  interrogating  parts  of  bill 9,  n. 

recitals  in  deed  and  writ  of  execution 237(6) 

writ  of  execution  and  judgment 237(6) 

curing  of,  by  statute 237(6) 

in  cases  of  divorce 463,  n. 

Verification — 

of  signature  to  acknowledgment  of  service  of  subpoena 19,  n.,  21,  n. 

waiver  of  notice  of  sale 419(6)' 

consent  of  widow  to  join  and  release  on  sale 678(a) 

see  "Affidavits,"  ante. 
Vice  Chancellor— 

in  case  of  contempt  before 45(a) 

examination  of  witnesses  before 164,  n.. 


INDEX   TO   FORMS   AND   NOTES.  883 

Vice  Chancellor —  page. 

affidavit  in  cause  before 165 

hearing  of  cause  by 174,  n.,  175,  n. 

order  of  reference  to 176 

Chancellor  may  refer  cause  to 176(a) 

application  for  reference  to ,....  176(a) 

practice  on  cause  referred  to 176(a) 

rehearing  of  decree  advised  by 184,  n, 

injunctions  may  be  granted  by 300(a) 

Waiver — 

of  oath  to  answer,  statute  on 10(a) 

irregularity  in  subpcena  by  appearing , 18(a) 

issuing  of  subpa?na  before  bill  filed  by  appearing 18(a),  36,  n. 

process  for  contempt 37(«) 

exception  to  bill,  by  objection  under  rule 62,  n. 

security  for  costs,  what  constitutes ^ 69,  n. 

defects  in  service  of  subpcena  by  demurrer 91,  n. 

answer  on  oath  on  amendment  of  bill 114,  n. 

right  to  except  to  answer  after  order  to  amend  bill 122,  n. 

rights  on  conduct  of  cause  by  defendant 139(a) 

in  case  of  abandonment  of  suit 142(a) 

of  irregularity  in  re-examination  of  witness 168(a) 

objection  to  form  of  decree 179,  n.,  181,  n. 

award  of  costs  in  decree 181,  n. 

in  case  of  insufficient  affidavit  for  injunction...., 288,  n. 

of  objection  to  bill  by  foreign  executor 332,  n. 

forfeiture  of  mortgage 351,  n. 

order  of  reference  by  taking  part  in  proceedings 413,  n. 

notice  under  rule  by  tenant  in  doAver,  &c 419(6),  420,  n. 

order  for  leave  to  file  supplemental  bill 36,  n.,  501(a) 

objection  to  bill  of  review 508(o) 

Warrant  of  commitment — 

see  "  Commitment,"  ante. 

Warrant  to  produce  alleged  lunatic 647 

Wa.ste— 

process  for  apptarance,  in  case  of. 18(a) 

in  case  of  mortgaged  premises 373,  n. 

of  funds  of  corporation 580(a) 

see  "  Injunction,"  ante. 

Will,  decree  establishing 632,  632(a) 

Writing — 

rule  as  to  legibility  of  liandwriting 1(a) 

typewriting 1(a) 

WVits — 

assistance,  of. 209 

attachment,  of. 38 

citation  in  divorce 21 


884  INDEX   TO   FORMS   AND   NOTES. 

Writs —  PAGE. 

habeas  corpus 478 

lunatics,  &c.,  precept  to  sheriff. 645 

master's  summons  on  exceptions 62 

foreclosure 354 

ne  exeat 310 

sequestration - 43 

subpoena,  ad  respondendum 18 

ad  testificandum 156,  648 

see  "  Execution,  '  forms  of,'  "  ante. 
"  Injunction,"  ante. 
[The  above  are  indexed  fully  under  their  respective  titles,  q.  v.] 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  800  085 


LIBRARY  ^ 
WM.  H.  PAGE 


iii 


